Wharton v. County of Nassau et al

Filing 79

MEMORANDUM & ORDER re: 72 Defendants' Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART. It is GRANTED with regard to Plaintiff's: (1) negligence claim; (2) Title VII discrimination and retaliation claims based upon time-b arred events; (3) Title VII discrimination claims based on Plaintiff's requests for time off, requests for use of the inmate chapels, and failure to promote because such events are not adverse employment actions sufficient to support a discrimin ation claim; (4) Title VII claim for racial discrimination; (5) Title VII retaliation claim based upon denial of inmate chapels and actions with respect to the EAP Unit, as these are not adverse actions sufficient to support a retaliation claim; (6) state law claims against the County and the Department for Plaintiff's failure to timely serve a notice of claim; (7) hostile work environment claim under the NYSHRL; and state law claim for intentional infliction of emotional distress. Defendan ts' motion is otherwise DENIED. In accordance with this Court's Order dated 5/29/12 [D.E.62], the parties shall file a Joint Pre-Trial Order within 21 days of the date of this Order. This matter is REFERRED to Magistrate Judge A. Kathleen Tomlinson to resolve any remaining pretrial issues and to determine whether this action is ready for trial. Ordered by Judge Joanna Seybert on 9/10/2013. (Nohs, Bonnie) (Main Document 79 replaced on 9/10/2013) (Valle, Christine).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------x
JONATHAN P. WHARTON,
Plaintiff,
-againstCOUNTY OF NASSAU; NASSAU COUNTY
SHERIFF’S DEPARTMENT; ELIZABETH
LOCONSOLO, in her official and
individual capacity; CAPTAIN
ANTHONY ZUARO, in his official and
individual capacity; GERARD
HUMPHREYS, in his official and
individual capacity; and MARY
ELIZABETH OSTERMANN, in her
official and individual capacity,

MEMORANDUM & ORDER
10-CV-0265(JS)(AKT)

Defendants.
------------------------------------x
APPEARANCES
For Plaintiff:
Frederick K. Brewington, Esq.
Valerie M. Cartright, Esq.
Law Offices of Frederick K. Brewington
556 Peninsula Boulevard
Hempstead, NY 11550
For Defendants:

Barbara E. Van Riper, Esq.
Office of the Nassau County Attorney
One West Street
Mineola, NY 11501
Deanna Darlene Panico, Esq.
Michael Paul Siravo, Esq.
Bee Ready Fishbein Hatter & Donovan, LLP
170 Old Country Road, Suite 200
Mineola, NY 11501

SEYBERT, District Judge:
Currently

pending

before

the

Court

is

Defendants

County of Nassau (the “County”), the Nassau County Sheriff’s
Department

(the

“Department”),

Elizabeth

Loconsolo

(“Loconsolo”), Captain Peter Dudek (“Dudek”), Captain Anthony
Zuaro

(“Zuaro”),

Elizabeth

Gerard

Ostermann’s

Humphreys

(“Humphreys”),

(“Ostermann”

and

“Defendants”) motion for summary judgment.

and

Mary

collectively,

For the following

reasons, Defendants’ motion is GRANTED IN PART and DENIED IN
PART.
BACKGROUND1
Plaintiff

Jonathan

P.

Wharton

(“Plaintiff”

or

“Wharton”) originally commenced this action pro se on January
15, 2010 and thereafter retained counsel to file an Amended
Complaint.
Defendants

The

Amended

discriminated

Complaint
against

alleges,
him

on

inter

the

alia,

basis

African-American race and his Protestant religion.
Plaintiff

alleges

that

Defendants

retaliated

of

that
his

Moreover,

against

him

for

opposing Defendants’ allegedly discriminatory practices.
Similar to how the parties have summarized the factual
background of this case, the Court will begin with some general
background

and

then

separate

its

discussion

into

different

categories of events.
Defendants initially moved for a pre-motion conference on June
18, 2012 (Docket Entry 63) and the Court held a conference on
July 27, 2012 (see 7/27/12 Min. Entry, Docket Entry 66). As a
result of the conference, Plaintiff agreed to withdraw certain
claims and the parties thereafter submitted revised Local Civil
Rule 56.1 Statements (“56.1 Stmt.”) and Counterstatements (“56.1
Counterstmt.”). The following material facts are drawn from
those revised 56.1 Statements and Counterstatements and their
evidence in support. Any relevant factual disputes are noted.
1

2

I.

Plaintiff’s Employment History
Plaintiff was hired as a Corrections Officer for the

Department in 1988.

(Defs.’ 56.1 Stmt. ¶ 2.)

After training,

he was assigned to the Department’s Security Unit and then to
Satellite Rehabilitation.
Plaintiff

was

Information.

(Defs.’ 56.1 Stmt. ¶ 4.)

reassigned
(Defs.’

again

56.1

Stmt.

to
¶

Later,

Administration
4.)

His

Public

duties

at

Administration Public Information involved providing tours to
people in the community and generally managing communications
with the public.
In

(Defs.’ 56.1 Stmt. ¶ 5.)

February

2002,

non-party

Sheriff

Edward

Reilly

reassigned Plaintiff from Administration Public Information to a
Security Platoon within the correctional facility.
Stmt.

¶ 7.)

According

to

Defendants,

Sheriff

(Defs.’ 56.1
Reilly

had

directed that some officers who were in non-mandated posts, such
as Plaintiff’s position in Administration Public Information, be
placed into mandated posts in order to reduce overtime costs.
(Defs.’ 56.1 Stmt. ¶¶ 6-7.)

Plaintiff, however, disputes that

his post in Administration Public Information was a non-mandated
post.

(Pl.’s 56.1 Stmt. ¶ 7.)

Furthermore, Defendants maintain

that Plaintiff had requested placement into Security Platoon 2,
which was a midnight shift and came with a night differential
stipend.

(Defs.’ 56.1 Stmt. ¶ 8.)

3

II.

Plaintiff’s Religious Involvement
According to Plaintiff, in 2000, Sheriff Reilly sent

Plaintiff to be trained and certified as a Senior Chaplain.
(Pl.’s

56.1

Plaintiff
services

Counterstmt.

had
for,

been

¶

1.)

ministering

inmates

since

With
to,

Defendants’

approval,

providing

religious

and

1990.

(Pl.’s

56.1

Counterstmt.

somewhat

differently,

¶ 1.)
Defendants

recount

the

events

and assert that in December 2003, Sheriff Reilly learned that
Plaintiff

was

providing

inmates

with

religious

services

and

asked Defendant Loconsolo, General Counsel for the Department,
to research whether this was appropriate.
¶ 11.)
this

(Defs.’ 56.1 Stmt.

Loconsolo conducted an investigation and determined that
created

a

conflict

between

Plaintiff’s

duties

as

a

corrections officer and his position as a religious advisor to
inmates.

(Defs.’ 56.1 Stmt. ¶ 12.)

As such, Sheriff Reilly

directed Loconsolo to draft a letter advising Plaintiff to cease
providing inmates with religious services.

(Defs.’ 56.1 Stmt.

¶ 14.)
Although it is somewhat unclear, the record seems to
reflect that Plaintiff indeed ceased ministering to inmates, but
continued to engage in some religious activities.
on

May

11,

2009,

Plaintiff

chapel while off-duty.

attended

services

(Defs.’ 56.1 Stmt. ¶ 21.)
4

For example,
in

the

inmate

This violated

the

Department’s

Policies

and

Procedures

regarding

visiting

facilities off-duty without permission and wearing a Corrections
Officer uniform for unofficial business.

(Defs.’ 56.1 Stmt.

¶¶ 19-20.)
On June 16, 2009, Defendant Zuaro sent Plaintiff an
email requesting information regarding Plaintiff’s attendance at
inmate religious services on May 11, 2009 and any other off-duty
attendance at the Correctional Facilities’ religious services.
(Defs.’ 56.1 Stmt. ¶ 24.)

Plaintiff responded three days later

and admitted to attending religious services at the Correctional
Facility while off-duty.

(Defs.’ 56.1 Stmt. ¶ 25.)

On July 20, 2009, the Department issued a Notice of
Personnel

Action

(“NOPA”)

against

Plaintiff

for

entering

the

Correctional Facility while off-duty without permission and for
wearing

his

uniform

while

(Defs.’ 56.1 Stmt. ¶ 26.)
“Counseling

Notice”

and

engaged

in

unofficial

Defendants characterize the NOPA as a
maintain

that

Plaintiff

disciplined nor was any adverse action taken.
Stmt. ¶¶ 27-29.)

conduct.

was

not

(Defs.’ 56.1

Plaintiff contends that a NOPA is disciplinary

in nature, it is the first step in a progressive discipline
policy,

and

discipline

that

for

it

future

subjects

him

violations.

¶¶ 68-69.)

5

to

a

(Pl.’s

higher
56.1

penalty

of

Counterstmt.

Thereafter,
access

to

the

on

chapels

August
in

(Defs.’ 56.1 Stmt. ¶ 16.)

7,

2009,

Building

A

and

Plaintiff
the

832

Building.

The Department denied Plaintiff’s

request because the chapels were for inmate use only.
56.1 Stmt. ¶ 16.)

requested

(Defs.’

Twice more, on February 26, 2010 and March 7,

2010, Plaintiff requested access to the inmate chapels on behalf
of himself and other corrections officers.2

(Defs.’ 56.1 Stmt.

¶¶

requests

17-18.)

occasions.

The

Department

denied

his

on

both

(Defs.’ 56.1 Stmt. ¶¶ 17-18.)
In addition to his requests for access to the inmate

chapels, Plaintiff also made a number of requests for time off
or for reassignments for religious observances.3

For example, on

April 1, 2010, Plaintiff submitted an inter-departmental memo to
Dudek requesting an “emergency reassignment” for April 3, 2010
and April 4, 2010 in order to allow Plaintiff to “attend to
certain

religious

practices.”

(Defs.’

56.1

Stmt.

¶

40.)

Likewise, on June 9, 2010, Plaintiff sent a memorandum to Zuaro,
Dudek,

and

reasons.

Loconsolo

requesting

a

reassignment

(Defs.’ 56.1 Stmt. ¶ 42.)

for

religious

Defendant Dudek denied

On February 26, 2010, Plaintiff requested access to the inmate
chapels on behalf of all corrections officers on the midnight
shift. (Defs.’ 56.1 Stmt. ¶ 17.) On March 7, 2010, Plaintiff
sent Defendant Dudek an inter-departmental memorandum requesting
access to the chapels and providing the signatures of fifteen
other employees. (Defs.’ 56.1 Stmt. ¶ 18.)
2

The Court will generally refer to these as Plaintiff’s “timeoff requests.”
3

6

these requests because reassignment was not the proper procedure
for seeking time off.

(Defs.’ 56.1 Stmt. ¶¶ 41, 43.)

Similarly, on October 27, 2010, Plaintiff requested a
reassignment or “self-swap” for October 31, 2010.
Stmt. ¶ 44.)

(Defs.’ 56.1

A “self-swap” is a procedure allowing an officer

to take time off and owe it back to the Department.
56.1 Stmt. ¶ 44.)

(Defs.’

The Department denied Plaintiff’s request due

to several procedural defects, including its contention that the
Department did not permit self-swaps.

(Defs.’ 56.1 Stmt. ¶ 45.)

Finally, on March 28, 2011, Plaintiff again requested
reassignments,
Defendants,
because

which

Plaintiff

Plaintiff’s

were
did

work

denied
not

because,

follow

schedule

did

according

to

proper

procedures

and

not

prohibit

attending religious ceremonies during the day.

him

from

(Defs.’ 56.1

Stmt. ¶¶ 46-47.)
III. Plaintiff’s Role in the Employee Assistance Program
In 1993, Plaintiff attended training for the Employee
Assistance Program (“EAP”) and became a volunteer to assist the
Department’s

employees

with

personal

with alcohol or troubles at home.

problems

such

issues

(Defs.’ 56.1 Stmt. ¶¶ 48-49.)

In 1995, the Department established an EAP Unit.
Stmt. ¶ 55.)

as

(Defs.’ 56.1

As such, Corporal Eric Bauman and civilian John

Connelly became the first full-time employees of the EAP Unit.
(Defs.’ 56.1 Stmt. ¶ 58.)

Later, Corporal Gary Pfleger and
7

civilian
assigned

Sandy
as

Long-Belfon,

full-time

EAP

who

is

African-American,

Coordinators.

(Defs.’

56.1

were
Stmt.

¶ 58.)
On September 20, 2006, a Sheriff’s bulletin was issued
listing the employees in particular units.
¶ 59.)

(Defs.’ 56.1 Stmt.

Plaintiff’s name was not on the EAP list.

(Defs.’ 56.1

Stmt. ¶ 59.)
Later,

in

January

2010,

Corporal

Pfleger

informed

Dudek that he may be leaving the EAP Unit, and as a result, the
Department
(Defs.’

posted

56.1

an

Stmt.

opening
¶¶

for

61-62.)

a

position

According

in
to

the

Unit.

Defendants,

Plaintiff and about nineteen others applied for the position.
(Defs.’ 56.1 Stmt. ¶ 63.)

Corporal Pfleger, however, ultimately

decided not to leave the EAP Unit, and the Department did not
conduct any interviews.

(Defs.’ 56.1 Stmt. ¶ 64.)

According to

Plaintiff, the posting was cancelled after Plaintiff was the
only officer to apply.
On

October

(Pl.’s 56.1 Counterstmt. ¶ 41.)
27,

2010,

Plaintiff

sent

Defendant

Humphreys an inter-departmental memo asking whether Plaintiff
was an active and recognized EAP Coordinator.

(Defs.’ 56.1

Stmt. ¶ 65.)

Humphreys responded in the negative.

(Defs.’ 56.1

Stmt. ¶ 66.)

The following year, in April 2011, the Department

circulated a memorandum inviting its corporals and corrections

8

officers to apply for the EAP, but Plaintiff did not do so.
(Defs.’ 56.1 Stmt. ¶ 67.)
IV.

Plaintiff’s Equal Employment Opportunity Complaints
Plaintiff filed several complaints regarding the above

incidents.

More

Employment

specifically,

Opportunity

the

Department

County

has

(“County

an

Equal

EEO”)

“that

implements and administers equal employment opportunity policies
and laws relating to the employment of all individuals with the
Defendant

County

Stmt. ¶ 68.)

and

the

Defendant

Department.”

(Defs.’

56.1

Defendant Ostermann has served as Director of the

County EEO since 2005.

(Defs.’ 56.1 Stmt. ¶ 69.)

On April 8, 2009, Plaintiff made a complaint to the
County EEO by speaking to the Affirmative Action Specialist,
Joseph Volker.

(Defs.’ 56.1 Stmt. ¶ 75.)

Plaintiff alleged

that he had been discriminated and retaliated against over the
last ten years.
Plaintiff,

Volker

(Defs.’ 56.1 Stmt. ¶ 75(a).)
was

eventually

terminated,

According to
in

part

mishandling complaints, including those of Plaintiff.
56.1 Counterstmt. ¶¶ 16-17, 26.)

for

(Pl.’s

Despite mishandling, however,

Defendants did not conduct any new action, new processing, or
new

investigations

of

Plaintiff’s

complaints.

(Pl.’s

56.1

Counterstmt. ¶ 27.)
On August 7, 2009, Plaintiff filed another complaint
with the County EEO alleging that Defendants had discriminated
9

against him because they denied him access to inmate chapels,
issued the July 2009 NOPA, and prohibited him from ministering
to inmates.

(Defs.’ 56.1 Stmt. ¶ 76.)

On August 21, 2009, the

County EEO denied both of Plaintiff’s complaints.

With respect

to the April 8, 2009 complaint, the County EEO determined that
it was not appropriate for review because Plaintiff did not
allege

any

disparaging

actions against him.

statements

or

any

adverse

(Defs.’ 56.1 Stmt. ¶ 75(b).)

employment

With respect

to the August 7, 2009 complaint, the County EEO determined that
the Department had offered legitimate business reasons for its
actions.

(Defs.’ 56.1 Stmt. ¶ 76(a).)
On August 28, 2009, Plaintiff filed a complaint with

the

United

(“EEOC”).

States

Equal

Employment

(Defs.’ 56.1 Stmt. ¶ 77.)

Opportunity

Commission

According to Defendants,

the EEOC complaint alleged that Defendants had discriminated and
retaliated
declining

against
to

Plaintiff

place

Plaintiff

in
is

the
a

following

supervisory

ways:

position;

(1)
(2)

transferring Plaintiff out of the Public Information Office; (3)
issuing

Plaintiff

prohibiting

a

Plaintiff

NOPA

for

from

attending

ministering

chapel
to

services;

inmates;

denying Plaintiff access to the inmate chapels.

and

(4)
(5)

(Defs.’ 56.1

Stmt. ¶ 77(a).)

The EEOC dismissed Plaintiff’s complaint on

October 19, 2009.

(Defs.’ 56.1 Stmt. ¶ 77(b).)

10

Plaintiff then filed a charge with the New York State
Division of Human Rights (“NYSDHR”) in October 2009 alleging
that he was discriminated against on the basis of his religion
because

Defendants

ordered

Plaintiff

to

stop

ministering

to

inmates and because Defendants issued a NOPA to Plaintiff for
attending

inmate

services.

(Defs.’

56.1

Stmt.

¶

78.)

NYSDHR dismissed Plaintiff’s charge on June 28, 2011.

The

(Defs.’

56.1 Stmt. ¶ 78(b).)
On

April

23,

2010,

Plaintiff

filed

a

retaliation

complaint with the County EEO alleging that Dudek retaliated
against him by denying him a position as an EAP Coordinator.
(Defs.’

56.1

Stmt.

¶

79.)

The

County

EEO

dismissed

the

retaliation complaint, finding that Defendants had a legitimate
business

reason

Coordinator.

for

not

assigning

Plaintiff

as

an

EAP

(Defs.’ 56.1 Stmt. ¶ 79(a).)

On July 14, 2010, Plaintiff filed another retaliation
complaint with the County EEO alleging that Dudek retaliated
against him by requiring Plaintiff return a pager that he had
received as an EAP volunteer and by failing to make Plaintiff an
EAP Coordinator.

(Defs.’ 56.1 Stmt. ¶ 80.)

Again this was

dismissed on the basis of a legitimate business reason.

(Defs.’

56.1 Stmt. ¶ 80(a).)
Finally, Plaintiff filed two additional charges with
the NYSDHR relating to alleged retaliation when he was denied a
11

position

as

an

EAP

Coordinator

and

for

discrimination

retaliation on the basis of race and religion.
Stmt.

¶¶

81-82.)

The

NYSDHR

dismissed

both

and

(Defs.’ 56.1
charges

on

the

grounds of administrative convenience since Plaintiff intended
to

pursue

his

claims

in

federal

court.

(Defs.’

56.1

Stmt.

¶¶ 81-82.)
DISCUSSION
Defendants

now

Plaintiffs’ claims.
standard

of

review

seek

summary

judgment

on

all

of

The Court will first address the legal
on

a

motion

for

summary

judgment

before

turning to Defendants’ motion.
Preliminarily, however, the Court notes that, after
receiving

Defendants’

moving

papers,

withdraw his negligence claim.
Entry 76, at 1.)

Plaintiff

has

agreed

to

(See Pl.’s Opp. Br., Docket

Accordingly, Defendants’ motion for summary

judgment is GRANTED in this regard and Plaintiff’s negligence
claim is DISMISSED.
I.

Legal Standard
Summary judgment is only appropriate where the moving

party can demonstrate that there is “no genuine dispute as to
any material fact” and that the moving party is entitled to
judgment

as

a

matter

of

law.

FED. R. CIV. P.

56(a).

In

considering this question, the Court considers “the pleadings,
depositions, answers to interrogatories and admissions on file,
12

together with any other firsthand information including but not
limited to affidavits.”

Nnebe v. Daus, 644 F.3d 147, 156 (2d

Cir. 2011) (citation omitted); see also FED. R. CIV. P. 56(c).
“In assessing the record to determine whether there is a genuine
issue to be tried . . . the court is required to resolve all
ambiguities and draw all permissible factual inferences in favor
of the party against whom summary judgment is sought.”
Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997).

McLee v.

The burden of

proving that there is no genuine issue of material fact rests
with the moving party.

Gallo v. Prudential Residential Servs.,

L.P., 22 F.3d 1219, 1223 (2d Cir. 1994) (citing Heyman v. Com. &
Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975)).

Once that

burden is met, the non-moving party must “come forward with
specific facts,” LaBounty v. Coughlin, 137 F.3d 68, 73 (2d Cir.
1998),

to

demonstrate

that

“the

evidence

is

such

that

a

reasonable jury could return a verdict for the nonmoving party,”
Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S. Ct. 2505,
2510,

91

L.

Ed.

2d

202,

218

(1986).

allegations or denials will not suffice.”
781 F.2d 319, 323 (2d Cir. 1986).

“Mere

conclusory

Williams v. Smith,

And “unsupported allegations

do not create a material issue of fact.”

Weinstock v. Columbia

Univ., 224 F.3d 33, 41 (2d Cir. 2000), superseded by statute on
other grounds as stated in Ochei v. Coler/Goldwater Mem’l Hosp.,
450 F. Supp. 2d 275, 282 (S.D.N.Y. 2006).
13

II.

Title VII Claims
Defendants assert that Plaintiff’s Title VII claims

fail as a matter of law.

More specifically, they argue that:

(1) Plaintiff’s Title VII claims are time-barred, (2) Plaintiff
has failed to exhaust his administrative remedies, (3) Plaintiff
has failed to establish a prima facie case of discrimination,
(4) Plaintiff has failed to establish a prima facie case of
retaliation,

and

(5)

Defendants

have

legitimate,

non-

discriminatory reasons for their actions that Plaintiff cannot
show

are

pretextual.

The

Court

will

address

each

of

these

arguments in turn.
A.

Timeliness
Defendants maintain that at least some of Plaintiff’s

claims are time-barred pursuant to 42 U.S.C. § 2000e-5.

The

Court agrees.
Under 42 U.S.C. § 2000e-5, if a party chooses to file
a charge with the EEOC, he must do so within 300 days of the
alleged discriminatory conduct.

See Kaur v. N.Y.C. Health &

Hosps. Corp., 688 F. Supp. 2d 317, 330 (S.D.N.Y. 2010).

Here,

Plaintiff first filed a charge with the EEOC on August 28, 2009.
(Siravo Decl., Docket Entry 72-1, Ex. LL.)
complaint,
and/or

Plaintiff

retaliated

raised

against:

that
when

he

had

As part of that
been

Defendants

discriminated

failed

to

hire

Plaintiff in a “supervisory position,” presumably referring to
14

Defendants’ creation of the EAP Unit in 1995 and their failure
to designate Plaintiff as an EAP Coordinator; when Defendants
transferred Plaintiff out of Administration Public Information
in February 2002; and when Defendants instructed Plaintiff to
stop ministering to inmates in December 2003.

(See Siravo Decl.

Ex. LL.)
Plaintiff,

somewhat

confusingly,

argues

that

those

incidents are “background evidence” but then states that they
are “reasonably related to the scope of the EEOC investigation.”
(Pl.’s Opp. Br., Docket Entry 76, at 2.)

While there is a

“reasonably related” exception where a plaintiff has failed to
exhaust his administrative remedies, see Deravin v. Kerik, 335
F.3d 195, 201 (2d Cir. 2003), this exception does not clearly
address timeliness.
In
aforementioned

any

event,

incidents

Plaintiff
are

acknowledges

background

information

that
and

the
his

later assertions make clear that he does not intend to raise
these incidents as adverse employment actions.

(See Pl.’s Opp.

Br. at 5 (stating that Defendants have attempted to mislead the
Court by “focusing on conduct not in issue here and identifying
it as ‘unspecified’ adverse actions.”).)
Accordingly,

to

the

extent

that

Plaintiff

seeks

to

raise these events as a foundation for his discrimination or

15

retaliation claims, Defendants’ motion for summary judgment is
GRANTED.
B.

Exhaustion of Administrative Remedies
Defendants also assert that Plaintiff’s claims that he

was

discriminated

denied

several

and/or

of

his

retaliated
time-off

against

requests

when

are

not

Defendants
exhausted

because Plaintiff failed to raise them in his EEOC complaint.
(Defs.’

S.J.

Br.,

Docket

Entry

72-4,

at

3.)

The

Court

disagrees.
Title

VII

requires

that

a

plaintiff

exhaust

administrative remedies before filing a civil action.

his

Butts v.

N.Y.C. Dep’t of Hous. Preservation & Dev., 990 F.2d 1397, 140102 (2d Cir. 1993), superseded by statute on other grounds, Civil
Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071.

As a

result, it is well-settled that a district court may only “hear
Title VII claims that either are included in an EEOC charge or
are based on conduct . . . which is ‘reasonably related’ to that
alleged in the EEOC charge.”

Butts, 990 F.2d at 1401.

Second

three

Circuit

has

recognized

situations

where

The
claims

“reasonably relate” to conduct included in an EEOC charge: (1)
where the claims in the civil action “would fall within the
scope of the EEOC investigation which can reasonably be expected
to grow out of the charge of the discrimination,” Butts, 990
F.2d at 1402 (internal quotation marks and citation omitted);
16

(2) where the civil claim alleges “retaliation by an employer
against an employee for filing an EEOC charge,” id. at 1402-03;
and

(3)

where

the

claims

“allege[]

further

incidents

of

discrimination carried out in precisely the same manner alleged
in the EEOC charge,” id..
For the reasons discussed below, the Court finds that,
even if Plaintiff’s claims of discrimination based on denial of
his time-off requests were “reasonably related” to the matter
raised in his EEOC Charge, they are not adverse actions and
therefore cannot support a claim for Title VII discrimination.
However, Defendants’ denial of Plaintiff’s time-off requests do
constitute

adverse

employment

retaliation

claim.

As

“reasonably

related”

actions

the

conduct

for

purposes

aforementioned
makes

clear,

of

categories
courts

his
of

consider

alleged retaliatory conduct for filing an EEOC charge to be
“reasonably

related.”

Here,

Plaintiff’s

EEOC

Charge

raised

allegations of racial and religious discrimination (Siravo Decl.
Ex.

LL),

expected
would

and
to

any

grow

encompass

EEOC
out

of

investigation
Plaintiff’s

Plaintiff’s

that
EEOC

retaliation

would
Charge,

have

been

therefore,

allegations.

See

Stuevecke v. N.Y. Hosp. Med. Ctr. of Queens, No. 01-CV-0326,
2003 WL 22019073, at *4 (E.D.N.Y. Aug. 26, 2003) (information in
narrative statement of plaintiff’s EEOC charge--which only had
the “discrimination” box checked--was relevant in determining
17

that

retaliation

lawsuit

was

reasonably

related

to

the

EEOC

charge).
Accordingly, Defendants’ motion for summary judgment
for Plaintiff’s failure to exhaust his administrative remedies
as it pertains to Plaintiff’s allegations regarding his time-off
requests is DENIED.
C.

Discrimination Claim
Discrimination

claims

brought

under

Title

VII

are

analyzed under the burden-shifting framework that the Supreme
Court established in McDonnell Douglas Corp. v. Green, 411 U.S.
792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).

See Ruiz v. Cnty.

of Rockland, 609 F.3d 486, 491 (2d Cir. 2010); Holcomb v. Iona
Coll.,

521

F.3d

130,

138

(2d

Cir.

2008).

That

framework

requires a plaintiff to first establish a prima facie case of
discrimination, after which the burden shifts to the defendant
to

articulate

a

legitimate,

adverse employment action.

nondiscriminatory

reason

Holcomb, 521 F.3d at 138.

for

the

Once the

defendant provides such a reason, “the burden shifts back to the
plaintiff

to

demonstrate

by

competent

evidence

that

the

legitimate reasons offered by the defendant were not its true
reasons, but were a pretext for discrimination.”
Cornell

Univ.,

quotation

marks

584
and

F.3d

487,

citations

499

(2d

omitted),

grounds by N.Y.C. Local L. No. 85.
18

Cir.

Leibowitz v.

2009)

superseded

(internal
on

other

Defendants first argue that Plaintiff has failed to
establish a prima facie case of discrimination.

To establish a

prima facie case of discrimination, Plaintiff must show that:
“1) he belonged to a protected class; 2) he was qualified for
the position; 3) he suffered an adverse employment action; and
4) the adverse employment action occurred under circumstances
giving rise to an inference of discriminatory intent.”

Terry v.

Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003).

Defendants do not

dispute

first

that

Plaintiff

has

satisfied

the

and

second

elements; therefore, the Court will limit its discussion to the
third and fourth elements.
1.

Adverse Employment Action

Although

the

Amended

Complaint

does

not

allege

a

formal “list” of adverse employment actions, the Court reads it
to assert the following adverse actions: (1) issuing the July
20, 2009 NOPA; (2) denying of “promotions”--namely with respect
to cancelling the EAP job posting in 2010; (3) “stripp[ing]
Plaintiff

of

his

job

responsibilities--i.e.,

removing

Plaintiff’s responsibilities as an EAP volunteer and taking back
his

beeper;

(4)

denying

Plaintiff’s

reassignment/time-off

requests; and (5) denying Plaintiff’s requests to utilize the
inmate chapels.
Defendants assert that these actions are not adverse
employment

actions,

and

therefore
19

Plaintiff’s

Title

VII

discrimination

fails.

“An

employee

suffers

an

adverse

employment action if a ‘materially adverse change’ in the terms
and

conditions

of

his

employment

takes

place.”

Smalls

v.

Allstate Ins. Co., 396 F. Supp. 2d 364, 370 (S.D.N.Y. 2005)
(quoting Galabya v. N.Y.C. Bd. of Educ., 202 F.3d 636, 640 (2d
Cir. 2000)).

There is no definitive rule as to what types of

actions constitute an adverse employment action, see Connor v.
N.Y.

State

Dep’t

of

Corr.

Servs.,

No.

01-CV-0642,

2007

WL

764508, at *4 (E.D.N.Y. Mar. 9, 2007), but an action “must be
more disruptive than a mere inconvenience or an alteration of
job responsibilities,” Galabya, 202 F.3d at 640.
The Court turns first to the July 20, 2009 NOPA issued
to Plaintiff.

Defendants characterize the NOPA as merely a

“Counseling Notice” and maintain that Plaintiff was not fined,
suspended, or reprimanded as a result.
6.)

(Defs.’ Br. for S.J. at

Indeed, the NOPA contains a section entitled “Department

Action,” and though it includes activities such as termination,
a fine, or a demotion, only the box for “Counseling Notice” is
checked off.

(Siravo Decl. Ex. M.)

Furthermore, “oral and

written warnings do not amount to materially adverse conduct,”
Chang v. Safe Horizons, 254 F. App’x 838, 839 (2d Cir. 2007),
and “[t]he application of the [employer’s] disciplinary policies
to [the employee], without more, does not constitute adverse

20

employment action,” id. (quoting Joseph v. Leavitt, 465 F.3d 87,
91 (2d Cir. 2006) (alterations in original)).
Plaintiff,

however,

maintains

that

the

NOPA

“constitutes one of the first steps in the disciplinary process
and subjects the Plaintiff to a higher penalty of discipline for
future violations.”

(Pl.’s Opp. Br. at 8; see Zuaro Dep. at 80

(“Q: The counseling notice, would that be considered one of the
first

steps

policy?

that

are

taken

A: It could be.”).)

in

this

progressive

discipline

The Court agrees with Plaintiff

that there is a question of fact as to whether the NOPA in this
case constituted an adverse employment action.

First, “NOPAs

. . . can negatively affect professional growth and form the
basis of further discipline . . . .”

Humphrey v. Cnty. of

Nassau, No. 06-CV-3682, 2009 WL 875534, at *5 (E.D.N.Y. Mar. 30,
2009).
“there

Second, as Judge Joseph F. Bianco found in Humphrey,
are

disputed

reasonableness
issue.”

of

issues

the

of

material

defendants’

Id. at *5 n. 5.

fact

issuances

of

regarding
the

NOPAs

the
at

Here, Defendant Zuaro issued the NOPA

on July 20, 2009, but the NOPA itself discusses events months
prior, including events in September 2008.

Furthermore, Zuaro

testified regarding a somewhat limited “investigation,” some of
which he did not recall, and at times characterized the NOPA as
disciplinary in nature.

(Zuaro Dep. at 58-59 (discussing the

investigation as including emailing Plaintiff and potentially
21

talking

to

another

individual,

but

not

recalling

any

investigation regarding some of the events in September 2008);
id. at 61 (“Jonathan was reprimanded or disciplined for these
issues.”).)

Accordingly, there is a sufficient question of fact

to overcome summary judgment on this issue; whether Plaintiff
will ultimately be able to establish such at trial is another
matter.

See Tepperwien v. Entergy Nuclear Operations, Inc., No.

07-CV-0433, 2010 WL 8938797, at *4-5 (S.D.N.Y. Mar. 16, 2010)
(noting that, although there was a genuine issue of material
fact

as

to

whether

adverse”

at

the

established

that

a

counseling

summary
the

memorandum

judgment

counseling

stage,

had

been

was

“materially

evidence
completely

at

trial

expunged

from the plaintiff’s personnel record and there was nothing to
suggest,

other

than

plaintiff’s

subjective

belief,

that

the

denial

of

counseling had been a disciplinary measure).
In

contrast,

however,

Defendants’

Plaintiff’s requests for time off and for use of the inmate
chapels
purposes

do
of

not

constitute

Plaintiff’s

adverse

Title

VII

employment

actions

discrimination

Denials of vacation time are not adverse actions.

for

claims.

See Kaur, 688

F. Supp. 2d at 332 (“[D]enial of vacation time and alteration of
Plaintiff’s lunch schedule, taken alone, do not rise to the
level of an adverse employment action.”); O’Neill v. City of
Bridgeport Police Dep’t, 719 F. Supp. 2d 219, 226 (D. Conn.
22

2010) (forcing plaintiff to take a vacation day for Sabbath was
not an adverse action); Figueroa v. N.Y. Health & Hosps. Corp.,
500

F.

Supp.

2d

224,

229-30

(S.D.N.Y.

2007)

(denial

of

plaintiff’s first choice of vacation time was not an adverse
employment

action).

Nor

are

Defendants’

refusals

to

allow

Plaintiff to use the inmate chapels a materially adverse change
in his employment because, primarily, his requests pertained to
usage of the space during his lunch break for purposes such as
meditation and bible study.
H.)

Plaintiff’s

ministered

to

argument

inmates,

(See, e.g., Siravo Decl. Exs. G,
that,

any

denial

because
of

he

access

had
to

previously
the

inmate

chapels is a material change in his job privileges and duties is
unavailing.

Plaintiff

conflate

time-barred

the

is,

unsuccessfully,

allegations

attempting

regarding

to

Defendants’

instructions to stop ministering with his timely claims.
Finally,

the

Court

considers

whether

Defendants’

refusal to “promote” Plaintiff to a full-time position in the
EAP Unit and divesting him of his responsibilities as an EAP
volunteer are adverse employment actions.

While courts have

considered a failure to promote as an adverse action, see, e.g.,
Humphrey,
failure

to

2009

WL

promote

875534,

at

certainly

*5

(“As

qualifies

an

initial

under

the

matter,
law

as

a
an

‘adverse employment action’” (quoting Demoret v. Zegarelli, 451
F.3d 140, 151 (2d Cir. 2006)), Plaintiff’s characterization in
23

this instance as a failure to promote is not accurate.

The

record clearly reflects that Plaintiff would not have been paid
any more in the EAP Unit than in Security Platoon 2, and in fact
would have been paid less due to loss of his night differential
stipend.4

(Pl.’s Dep. at 103.)

Moreover, there is nothing to

suggest that the EAP Unit was inherently more prestigious than
any other position beside Plaintiff’s subjective belief in such.
Denial of volunteer opportunities simply does not rise to the
level

of

adverse

employment

actions.

See

Chamberlin

v.

Principi, 247 F. App’x 251, 254-55 (2d Cir. 2007) (prevention of
plaintiff from volunteering as a replacement group leader, where
he had volunteered prior to EEOC complaint, did not satisfy
somewhat less stringent standard for retaliatory acts).
refusals

to

transfer

an

employee

into

constitute an adverse employment action.

a

lateral

Nor are
position

Cf. Smalls, 396 F.

Supp. 2d at 371 (“It is well-settled that a lateral transfer
does not rise to the level of an adverse employment action as a
matter of law.”).
Accordingly, Defendants’ motion for summary judgment
on Plaintiff’s Title VII discrimination claims for failure to
Plaintiff also maintains that EAP volunteers and full-time
employees in the EAP Unit received pagers, accompanied with
additional pay associated with those pagers. (Pl.’s Br. at 7.)
Any such additional pay, however, was minimal. (See Pl.’s Dep.
at 43 (in response to being asked the amount of “beeper pay” or
“pager pay,” Plaintiff responded that he received “$80 biweekly
for being on call”).)
4

24

establish any adverse employment action is DENIED.

However, the

only adverse employment action that survives as a basis for
Plaintiff’s Title VII discrimination claims is the July 2009
NOPA.
2.

Inference of Discrimination

Defendants further maintain that, even if Plaintiff
has

established

sufficiently
under

some

establish

circumstances

discrimination.

adverse
that

employment

such

giving

adverse

rise

action,

he

cannot

actions

took

place

to

an

inference

of

The Court agrees with respect to Plaintiff’s

claims of racial discrimination but disagrees as to Plaintiff’s
claims of religious discrimination.
An inference of discrimination may be derived from a
variety of circumstances such as “the employer’s criticism of
the plaintiff’s performance in ethnically degrading terms,” or
the

employer’s

“invidious

comments

about

others

in

the

employee’s protected group,” or “the more favorable treatment of
employees not in the protected group.”

Chambers v. TRM Copy

Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994).
Despite

the

amount

of

evidence

in

this

case,

Plaintiff’s evidence regarding any alleged racial discrimination
is

scant.

For

example,

Plaintiff

argues

that

“no

African

Americans were picked as full-time EAP coordinators” even though
Plaintiff was well-qualified for the position and “Defendants’
25

instruction

to

stop

ministering

to

inmates,

despite

[Plaintiff’s] prior paid training to do so by the Sheriff’s
Department,

gave

rise

to

an

inference

of

discrimination.”

(Pl.’s Opp. Br. at 11.)

The Court fails to see how the latter

is

motivated

potentially

racially

at

all.

With

respect

to

Plaintiff’s assertions that Caucasian employees were given fulltime

positions

in

the

EAP

Unit,

Plaintiff

also

readily

acknowledges that Captain Bauman, the first individual given a
full-time

EAP

position,

was

qualified for the position.

higher-ranking

and

also

(Pl.’s Dep. at 56-63.)

highly-

Thereafter,

at least one African-American was appointed to the EAP Unit.
Accordingly,

Defendants’

motion

for

summary

judgment

on

Plaintiff’s Title VII claim of racial discrimination is GRANTED.
This does not end the inquiry, however, with respect
to

Plaintiff’s

Title

VII

claim

of

religious

discrimination.

Here, Plaintiff alleges that there is an inference of religious
discrimination due to the sequence of events.
Gamache,
sequence

566
of

F.3d

307,

events

312
may

(2d

Cir.

2009)

establish

an

See Sassaman v.
(noting

that

inference

discrimination); Chambers, 43 F.3d at 37 (same).

the
of

The Court

agrees.
Defendants

are

correct

in

their

assertion

that

Plaintiff has not come forward with any evidence indicating that
employees

who

were

members

of
26

other

religious

groups

were

allowed to minister to inmates.

(Defs.’ S.J. Br. at 9-10.)

However, it is not clear that anyone else sought to minister to
inmates.

More relevant here are Plaintiff’s allegations that

Defendants authorized Plaintiff to minister to inmates and even
paid for his religious training and certification (Am. Compl.
¶¶ 44-45, 57), yet later directed him to stop ministering and
issued

a

NOPA

to

him

for,

inter

services at the inmate chapel.

alia,

attending

religious

Accordingly, the Court finds

that Plaintiff has sufficiently established a prima facie case
of religious discrimination to overcome Defendants’ motion for
summary

judgment,

and

Defendants’

motion

in

this

regard

is

has

not

DENIED.
D.

Prima Facie Case of Retaliation
Defendants

further

argue

that

Plaintiff

established a prima facie case of retaliation.
initial

burden

of

establishing

a

prima

To meet his

facie

case

of

retaliation, Plaintiff must show that: “(1) [he] was engaged in
protected

activity;

(2)

[Defendants]

w[ere]

aware

of

that

activity; (3) [Plaintiff] suffered an adverse employment action;
and (4) there was a causal connection between the protected
activity

and

the

adverse

employment

action.”

Reed

v.

A.W.

Lawrence & Co., 95 F.3d 1170, 1178 (2d Cir. 1996) (citation
omitted).

Again,

engaged

protected

in

Defendants
activity

do

not

by

filing

27

dispute

that

complaints

Plaintiff
with

the

County EEO, EEOC, and NYSDHR and that the County and Department
were aware of those protected activities.
10.)

(Defs.’ S.J. Br. at

However, they do dispute the third and fourth prongs of

the aforementioned standard.
1.

Adverse Employment Action

Defendants
articulated

in

assert

the

that,

for

discrimination

the

context,

established any adverse employment action.
The
actions

for

analysis

with

retaliation

respect

claims

reasons

Plaintiff

has

as
not

The Court disagrees.

to

differs

analysis for discrimination claims.

same

adverse
somewhat

employment
from

the

More specifically, “[t]he

Supreme Court has . . . broadened the scope of the kinds of
actions

that

employer.”

could

be

considered

retaliatory

acts

by

an

Chamberlin, 247 F. App’x at 254 (citing Burlington

Northern & Santa Fe Ry. v. White, 548 U.S. 53, 126 S. Ct. 2405,
165 L. Ed. 2d 345 (2006)).

“The standard announced by the

Supreme Court in White requires that a plaintiff ‘show that a
reasonable

employee

would

have

found

the

challenged

action

materially adverse, which in this context means it might well
have dissuaded a reasonable worker from making or supporting a
charge of discrimination.’”

Id. (quoting White, 548 U.S. at

68).
Thus, under this “broadened” standard, the NOPA is an
adverse

employment

action

for

the
28

reasons

articulated

above.

Similarly, this standard does not change the Court’s decision
regarding

denial

of

inmate

chapels

or

actions with respect to the EAP Unit.

any

alleged

adverse

See Cristofaro v. Lake

Shore Cent. Sch. Dist., 473 F. App’x 28, 31 (2d Cir. 2012) (“No
reasonable

employee

would

have

been

deterred

from

making

or

supporting a charge of discrimination based on Redman’s refusal
to

give

the

employee

an

unpaid

and

effectively

position as co-advisor to a student dance team.”);

volunteer
Chamberlin,

247 F. App’x at 255 (“[N]otably, in spite of the incident in
question,

Chamberlin

assigned

group

continued

therapy

to

fulfill

leadership

established and led new therapy groups.
not

believe

that

Chamberlin’s

exclusion

his

previously

responsibilities

and

In other words, we do
from

volunteering

to

take on an unassigned duty would have dissuaded a reasonable
worker from bringing a discrimination charge.”).
is

objective

and

Plaintiff’s

subjective

This analysis

thoughts

regarding

Defendants’ actions with respect to the EAP Unit do not weigh
into

the

Court’s

analysis.

See

White,

548

U.S.

at

68-70.

Accordingly, Defendants’ activities with respect to EAP are not
adverse employment actions for Plaintiff’s Title VII retaliation
claim.
However, the Court does find that Defendants’ denial
of Plaintiff’s requests for reassignments, self-swaps, and time
off are adverse actions as they would dissuade a reasonable
29

employee from making or supporting a charge of discrimination.
See

O’Neill,

requests

for

719

F.

Supp.

reassignment,

discrimination

claims,

2d

at

although

did

229

(denying

not

adverse

support

prima

plaintiff’s
actions

facie

for

retaliation

case).
Accordingly, Defendants’ motion for summary judgment
on

Plaintiff’s

Title

VII

retaliation

claims

for

establish an adverse employment action is DENIED.
NOPA

and

Defendants’

denial

of

Plaintiff’s

failure

to

The July 2009

time-off

requests

constitute adverse employment actions that survive Defendants’
motion for summary judgment on Plaintiff’s Title VII retaliation
claim.
2.

Causal Connection

Defendants

further

contend

that

Plaintiff

cannot

establish a prima facie case of retaliation because he cannot
demonstrate a causal connection between the protected activity
and

the

allegedly

adverse

employment

actions.

The

Court

disagrees.
“[A] causal connection can be established indirectly
by showing that the protected activity was closely followed in
time

by

the

adverse

employment

action.”

Bucalo

v.

Shelter

Island Union Free Sch. Dist., 691 F.3d 119, 131 (2d Cir. 2012)
(internal

quotation

marks

and

citation

omitted).

Here,

Plaintiff filed a complaint with the County EEO on April 8, 2009
30

(Siravo Decl. Ex. II) and Defendants issued a NOPA three months
later.

See Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110

(2d Cir. 2010) (noting that the Circuit has “previously held
that

five

months

relationship”).

is

not

Furthermore,

too

long

denial

to

of

find

[a]

Plaintiff’s

causal
time-off

requests occurred throughout the period of time that Plaintiff
filed various complaints with the County EEO, the EEOC, and
NYSDHR.

Accordingly, Defendants’ motion for summary judgment on

Plaintiff’s Title VII retaliation claim because Plaintiff cannot
demonstrate a prima facie case of retaliation is DENIED.
E.

Legitimate, Non-Discriminatory Reasons and Pretext
Defendants

summary

judgment

next
on

assert

that

Plaintiff’s

they

entitled

to

VII

Title

are

claims

of

discrimination and retaliation because they have come forward
with legitimate, non-discriminatory reasons for their actions
that Plaintiff cannot show are pretextual.
Specifically,

Defendants

assert

The Court disagrees.
that

they

had

a

legitimate, non-discriminatory reason for issuing the July 2009
NOPA to Plaintiff because Plaintiff’s actions in wearing his
uniform

for

unofficial

business

and

in

accessing

the

Correctional Center without permission from the Tour Commander
violated the Department’s Policies and Procedures.

(See Defs.’

Policy Numbers CD 03-01-11 and CD 03-03-02, Exs. I & J to Siravo
Decl.)

Plaintiff

does

not

necessarily
31

dispute

that

such

policies were in place and, while he maintains that he did have
permission to access the inmate chapels, he also asserts that he
had

been

attending

religious

services

in

the

Correctional

Facility in essentially the same manner for decades, at times
with the explicit approval of Defendants’ personnel, and that
Defendants’ suddenly began enforcing the policy.
As

Defendants

non-discriminatory

have

reason

come

for

forward

issuing

with

the

a

legitimate,

NOPA,

the

burden

shifts back to Plaintiff to establish that Defendants’ proffered
reason is pretextual.

See Kaytor v. Elec. Boat Corp., 609 F.3d

537, 553 (2d Cir. 2010).
provided
conclude

sufficient
that

discriminatory

The Court finds that Plaintiff has

evidence

that

Defendants’
reasons

were

a

reasonable

proffered

pretextual.

jury

could

legitimate,

non-

Plaintiff

has

shown

that, at least for a period of time, he had been attending
inmate services and attending religious services in the inmate
chapels without incident.

(See, e.g., Cartright Decl., Docket

Entry 76-1, Ex. S (August 27, 1997 letter recognizing Plaintiff
as a minister and corrections officer), Ex. T (September 1, 2000
letter recognizing Plaintiff as Senior Chaplain), Exs. U & V
(awards

recognizing

Plaintiff

for

while serving with the County).)

his

ministry

achievements

Furthermore, Plaintiff claims

that he had never been reprimanded for conduct similar to that
“counseled” in the July 2009 NOPA (Pl.’s Opp. Br. at 13) and
32

that, despite the apparent sudden shift in policy or change of
heart, Defendant Zuaro conducted a limited investigation without
any recollection as to why such policies were being enforced.
(See Zuaro Dep. at 99-102.)
summary

judgment

for

Accordingly, Defendants’ motion for

Plaintiff’s

failure

to

show

pretext

is

DENIED.
Defendants also maintain that they had a legitimate,
non-discriminatory

reason

requests

Plaintiff

because

“reassignments.”
that

there

was

for

had

Plaintiff,
no

real

denying

time-off

inappropriately

however,

policy,

Plaintiff’s

requested

has

submitted

way

or

one

the

evidence

other,

on

reassignments, and that self-swaps had been permitted in the
past.

(See

Dudek

Dep.

at

270-77.)

Evidence

regarding

Defendants’ departure from procedure can demonstrate pretext.
See

Becker

904088,

at

v.

Buffalo

*8

(W.D.N.Y.

Pub.

Schs.,

Feb.

15,

No.

07-CV-0343,

2013),

adopted

by

2013

WL

2013

WL

902412 (W.D.N.Y. Mar. 8, 2013); Renaud v. Fed. Express Corp.,
No. 10-CV-4261, 2012 WL 34089, at *8 (E.D.N.Y. Jan. 6, 2012).
Accordingly,

Defendants’

motion

for

summary

judgment

in

this

regard is also DENIED.
III.

Section 1981 and 1983 Claims
Defendants

Plaintiff’s

claims

also
brought

move

for

under

42

summary
U.S.C.

§

1981”) and 42 U.S.C. § 1983 (“Section 1983”).
33

judgment
1981

on

(“Section

According to

Defendants, Plaintiff has not established a municipal policy in
order to maintain a Section 1981 or Section 1983 claim against
the

County

and

the

Department,

demonstrated

any

personal

and

involvement

Plaintiff
of

the

Defendants in order to maintain claims against them.5

has

not

individual
Other than

asserting such arguments, however, Defendants offer no further
explanation for their assertions.6
A

plaintiff

seeking

to

assert

claims

against

a

municipality under Sections 1981 or 1983 must show that the
claimed violation of his constitutional rights was the result of
a

municipal

policy

or

custom

under

Monell

v.

Department

of

Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611
(1978).

Carmody v. Vill. of Rockville Centre, 661 F. Supp. 2d

299, 330 (E.D.N.Y. 2009).

Although isolated incidents by non-

policymaking employees are insufficient to hold a municipality
liable, a plaintiff can prevail if he can establish that the
alleged

wrongdoing

was

pursuant

to

a

policy

or

custom,

was

Defendants also assert that, because Section 1981 and 1983
claims are analyzed under the same burden-shifting analysis as
Title VII claims, Plaintiff’s Section 1981 and 1983 claims must
fail for the same reasons articulated above. Insofar as the
Court has rejected Defendants’ arguments regarding Plaintiff’s
Title VII claims, Plaintiff’s Section 1981 and 1983 claims
similarly survive.
5

“[I]t is well-established that courts cannot make a party’s
arguments for it or fill in the blanks on that party’s behalf.”
Bey v. New York, No. 11-CV-3296, 2013 WL 3282277, at *6
(E.D.N.Y. June 25, 2013) (internal quotation marks and citation
omitted).
6

34

sufficiently

widespread

and

persistent

that

it

constituted

a

custom or policy of which supervising authorities must have been
aware,

or

occurs

under

circumstances

evidencing

supervisory

officials’ deliberate inference to such wrongdoing.

Jones v.

Town of E. Haven, 691 F.3d 72, 80-81 (2d Cir. 2012).
Here, Plaintiff apparently asserts that policymakers
participated directly in the unconstitutional activity and/or
that policy-makers acquiesced in the unconstitutional behavior
of their subordinates.

See Okin v. Vill. of Cornwall-on-Hudson

Police Dep’t, 577 F.3d 415, 439-40 (2d Cir. 2009) (one way of
showing custom or policy is by establishing that policymakers
acquiesced in unconstitutional behavior); Carbajal v. Cnty. of
Nassau, 271 F. Supp. 2d 415, 422 (E.D.N.Y. 2003) (noting that a
plaintiff

may

prove

municipal

liability

by

showing

that

a

policymaker directly committed or commanded the unconstitutional
behavior).
policymakers

More
such

specifically,
as

Dudek,

Plaintiff
Loconsolo,

argues
and

that

Ostermann

participated in particular unconstitutional acts against him.
(Pl.’s Opp. Br. at 21.)

Defendants raise no dispute as to

whether these individuals are policymakers.

Furthermore, Dudek,

Loconsolo, and Ostermann, for example, were aware of, if not
directly

participated

denials

of

in,

Plaintiff’s

the

issuance

time-off

of

the

requests.

NOPA

and

the

Accordingly,

Defendants’ motion for summary judgment on Plaintiff’s Section
35

1981 and 1983 claims on the basis of Plaintiff’s failure to
establish

municipal

liability

against

the

County

and

the

Department is DENIED.
Similarly,

and

for

some

of

the

same

reasons

just

mentioned, the Court rejects Defendants’ argument that Plaintiff
cannot establish liability against the individual Defendants in
their individual capacities.

“In order to make out a claim for

individual liability under § 1981, ‘a plaintiff must demonstrate
some affirmative link to causally connect the actor with the
discriminatory action . . . . [P]ersonal liability under section
1981 must be predicated on the actor’s personal involvement.’”
Mazyck

v.

Metro.

Transp.

Auth.,

893

F.

Supp.

2d

574,

596

(S.D.N.Y. 2012) (quoting Patterson v. Cnty. of Oneida, N.Y., 375
F.3d

206,

229

(2d

Cir.

2004)

(alteration

in

original)).

Likewise, “a plaintiff must establish an individual defendant’s
personal involvement in the claimed violation to find him liable
in his individual capacity under § 1983.”

Id.

Here, Plaintiff

has produced evidence that Defendant Zuaro issued the NOPA (see
Siravo Decl. Ex. M); Defendant Dudek denied at least some of
Plaintiff’s time-off requests (see, e.g., Siravo Decl. Ex. U);
Defendants Loconsolo and Humphreys had at least some knowledge
of, and involvement in, denying Plaintiff’s time-off requests
(see Siravo Decl. Exs. Y (showing Loconsolo and Humphreys copied
on Plaintiff’s request), Ex. T (Plaintiff’s June 9, 2010 time36

off request directed to Zuaro, Dudek, and Loconsolo), Ex. X
(Humphreys’ denial of Plaintiff’s self-swap request of October
27, 2010)); and that Ostermann, as Director of the County EEO,
played at least some role with respect to Plaintiff’s County EEO
complaints

(Pl.’s

Counterstmt.

¶¶

10-27).

Accordingly,

Defendants’ motion for summary judgment on Plaintiff’s Section
1981

and

1983

claims

against

the

individual

Defendants

is

judgment

on

DENIED.7
IV.

Plaintiff’s State Law Claims
Defendants

also

move

for

summary

Plaintiff’s state law claims because: (1) Plaintiff failed to
serve a notice of claim; (2) Plaintiff’s claims under New York
Executive Law § 296 fail as a matter of law; and (3) Plaintiff’s
intentional

infliction

of

emotional

distress

claim

warrants

dismissal.

The Court will address each of these arguments in

turn.
A.

Notice of Claim
Defendants assert that Plaintiff’s state law claims

fail because Plaintiff has failed to serve a notice of claim as
Defendants also assert that Plaintiff’s Section 1981 claim must
fail because Plaintiff did not establish that Defendants’
alleged discriminatory acts inhibited Plaintiff’s ability to
engage in protected activities under Section 1981. The Court
disagrees. See Mazyck, 893 F. Supp. 2d at 594 (“Section 1981
‘outlaws discrimination with respect to the enjoyment of
benefits, privileges, terms, and conditions of a contractual
relationship, such as employment.’” (quoting Patterson, 375
F.3d at 224).
7

37

required by New York’s General Business Law (“GML”) §§ 50-e and
50-i.

(Defs.’ S.J. Br. at 20.)

Plaintiff does not dispute his

failure to file a notice of claim but asserts that such failure
is not fatal to his state law claims because Defendants were
effectively

put

on

notice

and

had

knowledge

of

Plaintiff’s

claims, Defendants’ failed to raise this issue previously and
therefore

have

waived

such

affirmative

defense,

employment

discrimination claims do not require a notice of claim, and
there is no notice of claim requirement as to the individual
Defendants.

The Court disagrees with Plaintiff on all points

except that Plaintiff was not required to serve a notice of
claim as to the individual Defendants.
First,

“notice

of

claim

requirements

apply

to

employment discrimination claims against a county by the express
terms of N.Y. County Law § 52 . . . .”

Anderson v. City of

N.Y., No. 06-CV-5726, 2012 WL 6720694, at *5 (E.D.N.Y. Dec. 27,
2012) (emphasis omitted).
Second, “the failure to timely file a notice of claim
[is] fatal unless the action has been brought to vindicate a
public interest or leave to serve a late notice has been granted
by the court.”
2009

WL

Germain v. Cnty. of Suffolk, No. 07-CV-2523,

1514513,

at

*8

(E.D.N.Y.

May

29,

2009)

(internal

quotation marks and citation omitted); see also Longi v. Cnty.
of Suffolk, No. 02-CV-5821, 2008 WL 858997, at *8 (E.D.N.Y. Mar.
38

27, 2008) (“Notice of claim requirements are strictly construed,
and a failure to comply with the requirements generally requires
dismissal of the state law claims.”).

Here, “a private civil

rights lawsuit[] has not been brought in the public interest,”
Humphrey v. Cnty. of Nassau, No. 06-CV-3682, 2009 WL 875534, at
*20 (E.D.N.Y. Mar. 30, 2009), nor can the Court extend the time
to serve a late notice at this juncture, see Longi, 2008 WL
858997, at *8.

Furthermore, knowledge of the action or claims

is insufficient to satisfy this requirement.

See Humphrey, 2009

WL 875534, at *20; Olsen v. Cnty. of Nassau, No. 05-CV-3623,
2008 WL 4838705, at *2 (E.D.N.Y. Nov. 4, 2008).

Accordingly,

Defendants’ motion for summary judgment on Plaintiff’s state law
claims against the County and the Department for Plaintiff’s
failure to serve a notice of claim is GRANTED.
With respect to the individual Defendants, however,
“the requirements of Sections 50-e and 50-i are not conditions
precedent to the commencement of an action against a county
official or employee ‘unless the county is required to indemnify
such person.’”

Poux v. Cnty. of Suffolk, No. 09-CV-3081, 2010

WL 1849279, at *13 (E.D.N.Y. May 4, 2010) (quoting Grasso v.
Schenectady Cnty. Pub. Library, 30 A.D.3d 814, 817, 817 N.Y.S.2d
186 (3d Dep’t 2006)).

“The County’s duty to indemnify these

employees turns on whether they were acting within the scope of
their

employment

.

.

.

.”

Olsen,
39

2008

WL

4838705,

at

*4

(internal quotation marks and citation omitted).

Employees are

not acting within the scope of their employment where they have
some

personal

torts.

involvement

in

the

commission

of

intentional

See Knox v. Cnty. of Ulster, No. 11-CV-0112, 2013 WL

286282, at *9 (N.D.N.Y. Jan. 24, 2013) (“Where, according to a
plaintiff’s
acting

complaint,

outside

the

the

scope

defendant

of

their

county

employees

were

employment,

i.e.,

the

by

commission of intentional torts, the filing of a notice of claim
is

unnecessary.”).

Here,

Plaintiff

has

alleged

personal

involvement in intentional torts by the individual Defendants,
and thus he was not required to file a notice of claim as to
them.

Accordingly, Defendants’ motion for summary judgment on

Plaintiff’s state law claim against the individual Defendants
for failure to serve a notice of claim is DENIED.
B.

Plaintiff’s Claims under New York Executive Law
§ 296
Defendants

also

assert

that

at

least

some

of

Plaintiff’s claims brought pursuant to New York Executive Law
§ 296, or New York State Human Rights Law (the “NYSHRL”), are
time-barred.

More specifically, Defendants assert that, because

Plaintiff filed his EEOC Complaint on August 28, 2009, that any
claims brought before August 28, 2008 are time-barred.
S.J. Br. at 21.)

(Defs.’

As the Court has made clear, however, the

actionable events involve issuance of the NOPA and denials of

40

Plaintiff’s time-off requests, which occurred after August 28,
2008.

Accordingly, Defendants’ motion for summary judgment on

Plaintiff’s

NYSHRL

claims

because

they

are

time-barred

is

DENIED.
In
claims

addition,

under

the

Defendants

NYSHRL

fail

for

Plaintiff’s Title VII claims.
Banking

Corp.,

650

F.

maintain
the

that

same

Plaintiff’s

reasons

that

See Maher v. Alliance Mortg.

Supp.

2d

249,

259

(E.D.N.Y.

2009)

(“Discrimination and retaliation claims brought under the NYSHRL
are evaluated identically to claims brought under Title VII.”).
However, for the reasons expressed above, the Court has not
fully

granted

Defendants’

motion

for

summary

judgment

on

Plaintiff’s Title VII and retaliation claims, and to the extent
that those claims survive, Plaintiff’s NYSHRL claims survive as
well and Defendants’ motion for summary judgment in that regard
is DENIED.
Moreover, Defendants also move for summary judgment
insofar as Plaintiff raises a hostile work environment claim
under

the

NYSHRL.

“In

order

to

establish

a

hostile

work

environment claim, a plaintiff must produce evidence 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.’”

Ugactz v. United Parcel Serv.,
41

Inc., No. 10-CV-1247, 2013 WL 1232355, at *17 (E.D.N.Y. Mar. 26,
2013) (quoting Rivera v. Rochester Genesee Reg’l Transp. Auth.,
702 F.3d 685, 693 (2d Cir. 2012)).

This involves a subjective,

as well as objective, analysis.
include

the

frequency

of

the

See id.

“Relevant factors

discriminatory

conduct;

its

severity; whether it is physically threatening or humiliating,
or

a

mere

offensive

utterance;

and

whether

it

unreasonably

interferes with an employee’s work performance.”

Maher, 650 F.

Supp.

and

2d

at

263-64

(internal

quotation

marks

citation

omitted).
Here, looking at the totality of the circumstances and
the evidence presented, the Court finds that Plaintiff has not
set

forth

sufficient

environment

claim.

evidence
While

to

establish

Plaintiff

has

a

hostile

presented

work

evidence

regarding the somewhat lengthy period of time over which the
events occurred, periodic or episodic events are not sufficient.
Ugactz,

2013

WL

1232355,

at

*17

(“Periodic

and

episodic

incidents are not sufficient to establish hostile environment
claims.”).
established

Additionally,
the

types

of

Plaintiff
conduct

hostile work environment claim.

has

not

sufficient

to

alleged
make

out

or
a

See Kemp v. A & J Produce

Corp., 164 F. App’x 12, 14-15 (2d Cir. 2005) (contrasting facts
of

case

at

issue

with

others

in

which

courts

have

found

sufficiently severe instances of discrimination for hostile work
42

environment claim); Ugactz, 2013 WL 1232355, at *18 (comments
and incidents over the course of a few years were not sufficient
pervasive

or

severe);

contra

Maher,

650

F.

Supp.

2d

at

264

(finding the plaintiff’s claims that “she was subjected to a
steady stream of unwelcome, escalating sexual harassment that
included physical assault and continuous sexual intimidation” to
be sufficient (internal quotation marks and citation omitted)).
Accordingly,

Defendants’

motion

for

summary

judgment

on

Plaintiff’s hostile work environment claim is GRANTED.
C.

Plaintiff’s Intentional Infliction of Emotional
Distress Claim
Finally, Defendants also move for summary judgment on

Plaintiff’s
emotional

state

law

distress

claim

because,

for

intentional

inter

alia,

infliction

Plaintiff

has

established sufficiently severe or outrageous conduct.
S.J. Br. at 23-24.)
“In

order

of
not

(Defs.’

The Court agrees.
to

assert

a

valid

claim

for

intentional

infliction of emotional distress under New York law, a plaintiff
must demonstrate (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 emotional
distress.”
2d

184,

Zhengfang Liang v. Café Spice SB, Inc., 911 F. Supp.
213

(E.D.N.Y.

citation omitted).

2012)

(internal

quotation

marks

and

“[T]he alleged conduct must be so outrageous

43

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.”
Comm’n

of

Foreign

Med.

Graduates,

No.

Wang v. Educ.

05-CV-1862,

2009

WL

3083527, at *6 (E.D.N.Y. Sept. 17, 2009) (internal quotation
marks and citation omitted).
Here,
Plaintiff’s

a

reasonable

claims

jury

regarding

could

not

discrimination

conclude
and

that

retaliation

satisfy the high threshold of extreme and outrageous conduct by
Defendants.

See Zhengfang Liang, 911 F. Supp. 2d at 213-14

(plaintiff’s

claims

regarding

sufficiently

assert

a

claim

retaliatory
for

conduct

intentional

did

not

infliction

of

emotional distress); Smalls, 396 F. Supp. 2d at 375 (discussing
high

threshold).

Nor

has

Plaintiff

set

forth

any

evidence

regarding “severe emotional distress.”

Id. (finding that the

plaintiff’s

once

assertion

that

(emphasis in original)).

he

cried

was

not

severe

Accordingly, Defendants’ motion for

summary judgment on Plaintiff’s claim for intentional infliction
of emotional distress is GRANTED.
CONCLUSION
For
summary

the

judgment

foregoing
is

GRANTED

reasons,
IN

PART

Defendants’
and

DENIED

motion
IN

for

PART.

Defendants’ motion is GRANTED with regard to: (1) Plaintiff’s
negligence claim; (2) Plaintiff’s Title VII discrimination and
44

retaliation

claims

based

upon

time-barred

events;

(3)

Plaintiff’s Title VII discrimination claims based on Plaintiff’s
requests for time off, requests for use of the inmate chapels,
and

failure

to

promote

because

such

events

are

not

adverse

employment actions sufficient to support a discrimination claim;
(4) Plaintiff’s Title VII claim for racial discrimination; (5)
Plaintiff’s Title VII retaliation claim based upon denial of
inmate chapels and actions with respect to the EAP Unit, as
these are not adverse employment actions sufficient to support a
retaliation claim; (6) Plaintiff’s state law claims against the
County

and

serve

a

the

Department

notice

of

for

claim;

Plaintiff’s
(7)

failure

Plaintiff’s

to

hostile

timely
work

environment claim under the NYSHRL; and (8) Plaintiff’s state
law

claim

for

intentional

infliction

of

emotional

distress.

Defendants’ motion is otherwise DENIED.
In accordance with this Court’s Order dated May 29,
2012 (Docket Entry 62), the parties shall file a Joint Pre-Trial
Order within twenty-one (21) days of the date of this Memorandum
and Order.

This matter is hereby REFERRED to Magistrate Judge

A. Kathleen Tomlinson to resolve any remaining pretrial issues
and to determine whether this action is ready for trial.
SO ORDERED
Dated: September
10 , 2013
Central Islip, New York

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.

45