Dall v. St. Catherine of Siena Medical Center

Filing 51

MEMORANDUM & ORDER granting in part and denying in part 34 Motion for Summary Judgment. For the reasons set forth in the attached Memorandum and Order, the Court denies Defendant's motion for summary judgment as to Plaintiff's gender discrimination claim, and grants Defendant's motion for summary judgment as to Plaintiff's hostile work environment and retaliation claims. Ordered by Judge Margo K. Brodie on 8/14/2013. (Olson, Kristin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------------ROBERT DALL,
Plaintiff,

MEMORANDUM & ORDER
11-CV-0444 (MKB)

v.
ST. CATHERINE OF SIENA MEDICAL CENTER,
Defendant.
---------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Plaintiff Robert Dall brings the above-captioned action against Defendant St. Catherine
of Siena Medical Center (“Medical Center”), asserting claims of gender discrimination, hostile
work environment, and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq. (“Title VII”), and the New York State Human Rights Law, N.Y. Exec. Law § 290
et seq. (“NYSHRL”). Defendant moved for summary judgment on all claims. For the reasons
set forth below, the Court denies Defendant’s motion for summary judgment as to Plaintiff’s
gender discrimination claim, and grants Defendant’s motion for summary judgment as to
Plaintiff’s hostile work environment and retaliation claims.
I.

Background
On January 8, 2001, Plaintiff was hired as a per diem special procedures technician in the

radiology department by Defendant, a not-for-profit hospital located in Smithtown, New York.
(Def. 56.1 ¶ 1; Pl. 56.1 ¶ 1.) On April 28, 2002, he was promoted to a full-time special
procedures technician, and on May 16, 2005, Plaintiff’s job title was changed to MRI technician.
(Def. 56.1 ¶¶ 20, 22; Pl. 56.1 ¶¶ 20, 22.) Plaintiff was a member of the Union which represented
the Medical Center’s health care professionals, and was elected President of the Union in 2004.
(Def. 56.1 ¶¶ 28–29, Pl. 56.1 ¶¶ 28–29.)

In or about March 2007, Beatrice Birmingham began working as a nurse in the radiology
department. (Def. 56.1 ¶ 65; Pl. 56.1 ¶ 65.1.) According to Plaintiff, Birmingham regularly
acted in a sexually explicit manner while at work. (Pl. 56.1 ¶ 65.3.) Birmingham told sexually
explicit stories, visited explicit websites on work computers, showed employees a drawing of her
vagina, described her boyfriend’s genitalia, brought a chocolate penis to work, openly discussed
her personal sex toys, and regularly told co-workers her “lips were made for blow jobs.” (Pl.
Dep. 108:5–112:24, 195:13–196:24, 222:1–15.) Plaintiff found Birmingham’s behavior to be
“offensive” and “downright disgusting,” and the behavior made him uncomfortable. (Pl. Dep.
221:16–222:15.) Plaintiff and others in the department told Birmingham that she was disclosing
“too much information,” or that “we don’t need to go there.” (Id. at 110:1–7, 121:16–21.) Both
Plaintiff and Andrea Scott, a nurse employed at the Medical Center, witnessed Birmingham
bring in a photograph of her ex-husband’s genitalia and show it to coworkers in the radiology
department. (Id. at 111:12–19; Scott Decl. ¶ 5.) According to Susan Horn, a nurse employed at
the Medical Center, Bonnie Wilson, a nurse formerly employed at the Medical Center, and
Karalyn Krieger, a computed tomography technologist (“CT tech”) currently employed by the
Medical Center, Birmingham routinely acted in a manner inappropriate for the workplace. (Horn
Dep. 10:3–14; Wilson Decl. ¶ 5; Krieger Decl. ¶ 4.) Birmingham wore tight clothing and sat on
the laps of male coworkers. (Horn Dep. 12:7–13:15.) According to Horn, Birmingham’s
behavior, including frequent conversations of a sexual nature, made the work environment
uncomfortable. (Horn Dep. 10:11–12:6.)
On December 12, 2009, the employees of the radiology department were invited to attend
an annual holiday party at Mediterranean Manor on Long Island. (Def. 56.1 ¶¶ 55–60; Pl. 56.1
¶¶ 55–60.) When Plaintiff arrived at the party, Birmingham told Plaintiff that she was “going

2

commando,” or not wearing underwear, under her dress. (Pl. Dep. 125:4–25.) Birmingham and
Anne Marie Hawkins, another radiology nurse, were “visible intoxicated,” at the party. (Scott
Decl. ¶ 6; Pl. Dep. 125:2–3.) During the event, Birmingham and Hawkins waited for all the male
individuals to gather around with their telephones and cameras and started kissing. (Pl. Dep.
126:1–19.) While Birmingham was posing for a photograph, Plaintiff used his cellular telephone
to take a photograph of her when her leg was raised. (Pl. Dep. 126:1–19; Hawkins Aff. ¶¶ 5, 6.)
According to Plaintiff, the photograph was of Birmingham’s knee and lower thigh, (Pl. Dep.
126:19, 129:13–14), and, according to Wilson, the photo did not show anything explicit or
inappropriate (Wilson Decl. ¶ 6). According to Hawkins, Plaintiff told her that he took the
photograph underneath Birmingham’s dress and that it was a photograph of her “ass.” (Hawkins
Aff. ¶¶ 6, 8.) Danielle Robbins, Defendant’s human resources representative, testified that
Hawkins and Birmingham acted inappropriately at the party, kissing and dancing with each
other. (Robbins Dep. 40:10–41:17.)
When Plaintiff showed Birmingham the photograph at the party, Birmingham did not ask
him to delete it. (Pl. Dep. 127:7–9.) In the days following the party, Defendant maintains that
Plaintiff proceeded to show the photograph to other employees at the Medical Center. (Def.
Mem. 5; Robbins Aff. ¶ 10.) According to Plaintiff, Hawkins approached Plaintiff and asked to
see his telephone. (Pl. Dep. 130:18–131:10.) Plaintiff handed Hawkins his telephone, and he
observed her showing the photograph to other employees. (Pl. 56.1 ¶ 75; Pl. Dep. 130:18–
133:24.).
In early January 2010, Plaintiff and Birmingham had a verbal confrontation relating to a
patient. (Pl. Dep. 134:17–135:25; Krieger Decl. ¶ 7.) According to Plaintiff, Birmingham
disappeared while at work and refused to assist a patient, and Plaintiff complained to his

3

supervisor, Dave Cook. (Pl. Dep. 134:18–20.) Cook complained to Gayle Romano,
Birmingham’s supervisor. (Id. at 134:18–20.) Birmingham approached Plaintiff about his
complaint, and Plaintiff told her that if “she put half the effort into doing her work as she did to
this, she’d be a halfway decent nurse.” (Id. at 134:23–135:7.) Following the confrontation,
Birmingham was upset. (Pl. 56.1 ¶¶ 76.6–76.8; Krieger Decl. ¶ 7.)
On January 10, 2010, within a day or two of the confrontation between Plaintiff and
Birmingham, and a month after the holiday party, Birmingham filed a complaint of sexual
harassment with her supervisor, Romano, against Plaintiff for taking the photograph and
allegedly circulating it at the Medical Center. (Def. 56.1 ¶ 77; Pl. 56.1 ¶ 77; Krieger Decl.
¶¶ 7–8.) In Birmingham’s complaint, she stated that she first heard about Plaintiff’s photograph
during the week after the holiday party. (Beldner Decl. Ex. G (“Birmingham Compl.”).) During
her deposition, however, Birmingham stated that she filed her complaint the morning after she
was informed by Hawkins that Plaintiff was showing the photograph to others at the Medical
Center. (Birmingham Dep. 43:3–47:21.)
The day after Birmingham filed her complaint, Plaintiff approached her in the hallway at
the Medical Center, asked her why she filed her complaint, and stated that the Medical Center
was going to try to fire him. (Pl. Dep. 147:1–24.) Plaintiff told her that he was not showing the
photograph around — he “wouldn’t do such a thing.” (Id. at 147:22–148:1.) Birmingham told
him that she needed to speak to Romano and that she would get back to Plaintiff. (Id. at
148:2–4.) Birmingham did not follow up with Plaintiff, so later that evening, Plaintiff sent a text
message to Birmingham stating “How could you do that to somebody?” (Id. at 148:11–16.)
After Birmingham did not respond, Plaintiff spoke to her boyfriend Steve, a CT tech at the
Medical Center, and asked him what was going on. (Id. at 148:15–22.) Steve told Plaintiff that

4

Birmingham was not allowed to speak to Plaintiff, and that she “better not and could not rescind
her complaint.” (Id. at 148:21–25.) According to Scott, Birmingham did attempt to rescind her
complaint against Plaintiff, but Romano, Birmingham’s supervisor, would not allow her to do so.
(Scott Decl. ¶ 8.) According to Wilson, Birmingham did not want to file the complaint against
Plaintiff in the first place, but the Medical Center management pressured her into doing so.
(Wilson Decl. ¶ 11.)
Robbins conducted an investigation as a result of Birmingham’s complaint. (Def. 56.1
¶ 113; Pl. 56.1 ¶ 113.) According to Robbins, she interviewed three individuals identified by
Birmingham as having witnessed Plaintiff’s inappropriate conduct, and each employee
confirmed Birmingham’s allegations. (Robbins Aff. ¶¶ 14–20; Hawkins Aff. ¶ 10.) Robbins
interviewed Hawkins, who informed Robbins that she wanted “to remain confidential because
she feared that Plaintiff would retaliate against her.” (Robbins Aff. ¶ 15.) Hawkins informed
Robbins that Plaintiff had shown her the photograph of Birmingham on his telephone and told
her he took the photograph underneath Birmingham’s dress at the holiday party. (Id. ¶ 16.)
Hawkins also told Robbins that she witnessed Plaintiff showing the photograph to other
employees at the workplace. (Id.) Robbins also spoke with Charles Maury and Bonnie Wilson,
two other employees in the radiology department. (Id. ¶ 17.) Maury told Robbins that he had
observed Plaintiff show the photograph to Birmingham at the holiday party and that Birmingham
requested that Plaintiff delete the photograph. (Id. ¶ 18.) Plaintiff later showed Maury the
photograph and stated that it was a photograph of Birmingham’s “ass.” (Id. ¶ 18.) Birmingham
confided in Maury that she was “distraught over the incident and felt that her personal space had
been violated.” (Id. at ¶ 19.) Wilson told Robbins that Plaintiff had shown her a photograph in

5

the workplace that “looked like ‘flesh’ and advised her that the photograph was a picture he had
taken at the Holiday Party of Ms. Birmingham’s thigh.” (Id. at ¶ 20.)
On January 12, 2010, two days after Birmingham filed her sexual harassment complaint
against Plaintiff, Robbins met with Plaintiff to discuss Birmingham’s complaint. (Def. 56.1
¶¶ 119–24; Pl. 56.1 ¶¶ 119–24.) Plaintiff admitted that he had used his cellular telephone to take
a photograph of Birmingham at the holiday party. (Def. 56.1 ¶ 122; Pl. 56.1 ¶ 122; Robbins Aff.
¶ 21.) According to Robbins, Plaintiff admitted that he took the photograph under Birmingham’s
dress and had shown the photograph and permitted the photograph to be shown to co-workers
within the radiology department. (Robbins Aff. ¶ 21.) Plaintiff told Robbins repeatedly that “he
did not believe that he had done anything wrong, either in taking the picture or circulating the
picture throughout the [r]adiology [d]epartment.” (Id.) Robbins told Plaintiff that she would
continue to investigate the complaint and that he should “refrain from contacting Ms.
Birmingham regarding her complaint.” (Id. ¶ 23.) Plaintiff maintains that he offered to show
Robbins the photograph in order to demonstrate that there was nothing inappropriate about it but
Robbins declined to view the photograph. (Pl. Decl. ¶ 3.) Plaintiff denies being told not to
contact Birmingham. (Id. ¶ 4.) Plaintiff asked Robbins whether the situation would be resolved
if Birmingham rescinded her complaint, and Robbins informed him that, if Birmingham
rescinded her complaint, there would be nothing for Robbins to investigate. (Id.)
According to Wilson, she was asked by Dominic Pernice, the Director of Radiology, and
Gayle Romano, Director of Critical Care and Radiology Nursing, to submit a written statement
against Plaintiff. (Wilson Decl. ¶ 8.) Although she initially told them that she was not
comfortable because she did not want to be involved and she did not believe that Plaintiff had
done anything wrong, she eventually agreed after numerous requests by Pernice and Romano.

6

(Wilson Decl. at ¶¶ 8–9.) Wilson maintains that she was pressured into submitting the statement.
(Id. at ¶ 10.)
On January 13, 2010, two days after Birmingham filed her sexual harassment complaint
against Plaintiff, Plaintiff filed a sexual harassment complaint with Robbins against Birmingham,
setting forth Birmingham’s sexually inappropriate behavior in the workplace. (Def. 56.1 ¶¶ 126–
129.) Plaintiff maintains that he had not previously filed a complaint because he was afraid of
retaliation and did not want to cause any problems, but by filing a complaint against him,
Birmingham “made it fair to go out and complain.” (Pl. Dep. 142:20–143:6.) Plaintiff
approached three co-workers — RJ Klein, Rich Garrant, and Karolyn Krieger — and asked them
to submit statements confirming the allegations in his complaint. (Def. 56.1 ¶ 140; Pl. 56.1
¶ 140.) Garrant and Krieger testified that they were not pressured or coerced into signing the
statement they submitted in support of Plaintiff’s complaint. (Garrant Dep. 16:9–18, 22:17–22;
Krieger Decl. ¶ 5.) Klein told Robbins that he was pressured by Plaintiff to submit a statement
in support of Plaintiff’s complaint. (Def. 56.1 ¶ 153; Pl. 56.1 ¶ 153.1.) Klein, Garrant and
Krieger confirmed that Birmingham routinely acted in a sexually inappropriate manner. (Pl. 56.1
¶¶ 150–66.) Robbins testified that she thought both Birmingham and Plaintiff acted
inappropriately, but that Birmingham acted more inappropriately. (Robbins Dep. 70:2–25.)
During the course of Robbins’s investigation, she conversed with Lynda Larson,
Plaintiff’s Union Advisor. (Pl. Dep. 166:19–167:3; Robbins Dep. 84:22–85:9.) According to
Larson, Robbins told her that the Medical Center had a “zero tolerance policy” with respect to
sexual harassment and was therefore seeking to terminate Plaintiff’s employment. (Larson Decl.
¶ 5.) Based on those conversations, Larson understood that Defendant was “unequivocally
seeking the termination” of Plaintiff. (Larson Decl. ¶ 6.) Larson therefore communicated to

7

Plaintiff that he would be terminated if he did not resign. (Pl. Dep. 224:24–225:6.) Plaintiff
claims that Robbins communicated directly to him that he would be terminated if he did not
resign. (Pl. Dep. 224:18–225:2.) According to Plaintiff, Robbins made it clear that suspension
was not an option and told him that she was “being pressured by a committee” to terminate him.
(Pl. Dep. 152:2–6.) Robbins maintains that she did not request Plaintiff’s resignation or advise
Plaintiff that he would be terminated if he did not resign. (Robbins Aff. ¶ 38.)
On January 15, 2010, Plaintiff met with Robbins to discuss the results of the
investigation. (Def. 56. ¶ 187; Pl. Dep. 152:1–154:9.) According to Robbins, at the time of this
meeting, the Medical Center had not yet decided what disciplinary action would be imposed
against Plaintiff. (Robbins Aff. ¶ 37.) On January 15, 2010, Plaintiff resigned. (Def. 56.1
¶ 194; Pl. 56.1 ¶ 194.) Plaintiff testified that he resigned after the meeting in a letter which
stated he was leaving due to the hostile work environment caused by Birmingham. (Pl. Dep.
154:7–9.)
Robbins testified that, following her investigation, a determination was made to suspend
Birmingham, and she believed Birmingham was suspended.1 (Robbins Dep. 98:19–99:7.)
Following the investigation, all employees in the radiology department were required to attend
mandatory sexual harassment training. (Def. 56.1 ¶ 179; Pl. 56.1 ¶ 179.)
II. Discussion
a.

Standard of Review

Summary judgment is proper only when, construing the evidence in the light most
favorable to the non-movant, “there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Kwong v. Bloomberg,
1

According to Birmingham, she was never formally disciplined. (Birmingham Dep.
64:5–65:19.)

8

--- F.3d ---, ---, 2013 WL 3388446, at *4 (2d Cir. July 9, 2013); Redd v. N.Y. Div. of Parole, 678
F.3d 166, 174 (2d Cir. 2012). The role of the court is not “to weigh the evidence and determine
the truth of the matter but to determine whether there is a genuine issue for trial.” Cioffi v.
Averill Park Cent. Sch. Dist. Bd. of Educ., 444 F.3d 158, 162 (2d Cir. 2006) (quoting Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). A genuine issue of fact exists when there is
sufficient “evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477
U.S. at 252. The “mere existence of a scintilla of evidence” is not sufficient to defeat summary
judgment; “there must be evidence on which the jury could reasonably find for the plaintiff.” Id.
The court’s function is to decide “whether, after resolving all ambiguities and drawing all
inferences in favor of the non-moving party, a rational juror could find in favor of that party.”
Pinto v. Allstate Ins. Co., 221 F.3d 394, 398 (2d Cir. 2000). The Second Circuit has “cautioned
that ‘[w]here an employer acted with discriminatory intent, direct evidence of that intent will
only rarely be available, so affidavits and depositions must be carefully scrutinized for
circumstantial proof which, if believed, would show discrimination.’” Taddeo v. L.M. Berry &
Co., --- F. App’x ---, ---, 2013 WL 1943274, at *1 (2d Cir. May 13, 2013) (quoting Gorzynski v.
JetBlue Airways Corp., 596 F .3d 93, 101 (2d Cir. 2010)).
b.

Gender Discrimination Claim

Plaintiff claims that he was treated differently, and constructively terminated, on account
of his gender. Title VII prohibits an employer from discharging or discriminating “against any
individual with respect to his compensation, terms, conditions, or privileges of employment,
because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–
2(a)(1). Thus, “[a]n employment decision . . . violates Title VII when it is ‘based in whole or in
part on discrimination.’” Holcomb v. Iona College, 521 F.3d 130, 137 (2d Cir. 2008) (quoting
Feingold v. New York, 366 F.3d 138, 152 (2d Cir. 2004)).
9

Title VII claims are assessed using the burden-shifting framework established by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).2 See Mills v. S.
Conn. State Univ., --- F. App’x ---, 2013 WL 2157955, at *1 (2d Cir. May 21, 2013) (applying
McDonnell Douglas framework to gender discrimination claim). Under the framework, a
plaintiff must first establish a prima facie case of discrimination. St. Mary’s Honor Ctr. v. Hicks,
509 U.S. 502, 506 (1993); see also Ruiz v. County Of Rockland, 609 F.3d 486, 491 (2d Cir.
2010). Plaintiff’s burden at this stage is “minimal.” Holcomb, 521 F.3d at 139 (quoting Hicks,
509 U.S. at 506). If Plaintiff satisfies this initial burden, the burden then shifts to Defendant to
articulate a legitimate, nondiscriminatory reason for its actions. Hicks, 509 U.S. at 506–07; Ruiz,
609 F.3d at 492. Defendant’s burden “is not a particularly steep hurdle.” Hyek v. Field Support
Servs., 702 F. Supp. 84, 93 (E.D.N.Y. 2010). It “is one of production, not persuasion; it ‘can
involve no credibility assessment.’” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
142 (2000) (quoting Hicks, 509 U.S. at 509). If Defendant offers a legitimate, nondiscriminatory
explanation for its action, summary judgment must still be denied, however, if Plaintiff can show
that “the evidence in plaintiff’s favor, when viewed in the light most favorable to the plaintiff, is
sufficient to sustain a reasonable finding that his dismissal was motivated at least in part by
[gender] discrimination.” Adamczyk v. N.Y. Dep’t of Corr. Servs., 474 F. App’x 23, 25 (2d Cir.
2012) (quoting Tomassi v. Insignia Fin. Grp., Inc., 478 F.3d 111, 114 (2d Cir. 2007)); see also
Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. ---, ---, 133 S. Ct. 2517, 2522–23 (2013) (“An
2

The burden of proof and production for employment discrimination claims under Title
VII and the NYSHRL are identical. Hyek v. Field Support Servs., Inc., 461 F. App’x 59, 60 (2d
Cir. 2012) (“Claims brought under the NYSHRL ‘are analyzed identically’ and ‘the outcome of
an employment discrimination claim made pursuant to the NYSHRL is the same as it is
under . . . Title VII.’” (alteration in original) (quoting Smith v. Xerox Corp., 196 F.3d 358, 363 n.
1 (2d Cir. 1999))). Therefore, Plaintiff’s Title VII and NYSHRL discrimination claims are
analyzed together for purposes of this motion.

10

employee who alleges status-based discrimination under Title VII need not show that the causal
link between injury and wrong is so close that the injury would not have occurred but for the act.
So-called but-for causation is not the test. It suffices instead to show that the motive to
discriminate was one of the employer’s motives, even if the employer also had other, lawful
motives that were causative in the employer’s decision.”); Edwards v. Huntington Union Free
Sch. Dist., No. 11-CV-1408, 2013 WL 3785620, at *5 (E.D.N.Y. July 18, 2013) (explaining the
burden shifting analysis for Title VII claims).
Defendant argues that Plaintiff cannot establish a prima facie case because there is no
adverse action and no inference of discrimination. (Def. Mem. 10–15.) For the following
reasons, viewing all facts in the light most favorable to Plaintiff, the Court finds that Plaintiff has
presented sufficient evidence from which a reasonable jury could find that Plaintiff suffered
gender based discrimination.
i.

Plaintiff’s Prima Facie Case

To establish a prima facie case of employment discrimination under Title VII, a plaintiff
must show that: (1) he belongs to a protected class; (2) he was qualified for the position in
question; (3) he suffered an adverse employment action; and (4) the adverse employment action
occurred under “circumstances giving rise to an inference of gender discrimination.” Mills, --- F.
App’x at ---, 2013 WL 2157955, at *1; see also Doe v. City of New York, 473 F. App’x 24, 27
(2d Cir. 2012). Defendant concedes that Plaintiff satisfies the first two elements of his prima
facie case. (Tr. 7:11–15; Def. Mem. 10.) Plaintiff has established that he is “a member of a
protected class (male),” satisfying the first element. Judge v. N.Y.C. Police Dep’t, No. 05-CV2440, 2008 WL 852010, at *2 (S.D.N.Y. Mar. 27, 2008). Since Plaintiff was at his job for
approximately nine years (Def. 56.1 ¶ 1; Pl. 56.1 ¶ 1) and Defendant does not dispute that he was
qualified for his position, Plaintiff has satisfied the second element. Slattery v. Swiss
11

Reinsurance Am. Corp., 248 F.3d 87, 92 (2d Cir. 2001) (holding that plaintiff who had been
performing for seven years met the “minimal qualification for a job”); Kerman-Mastour v. Fin.
Indus. Regulatory Auth., Inc., 814 F. Supp. 2d 355, 367 (S.D.N.Y. 2011) (finding that plaintiff
who worked for defendant for “eight years before she was terminated” and was promoted several
times met the minimal requirements); Gibbs v. City of New York, No. 02-CV-2424, 2005 WL
497796, at *7 (S.D.N.Y. Jan. 21, 2005) (finding that plaintiff established the second prong of his
gender discrimination claim where defendant did not dispute that he was qualified for his
position). Defendant argues, however, that Plaintiff cannot show that he suffered an adverse
employment action or that any adverse employment action occured under circumstances giving
rise to discriminatory intent based on his gender. (Def. Mem. 10–11.)
1.

Adverse Employment Action

Defendant argues that Plaintiff did not suffer an adverse action because he resigned rather
than “wait for the [Medical Center] to determine the appropriate disciplinary action to be taken
against him.” (Def. Mem. 11.) Plaintiff maintains that he was constructively discharged because
he was told that he would be terminated if he did not resign.3 (Pl. Opp’n Mem. 14; Pl. Dep.
153:2–22.) In order to establish an adverse action, Plaintiff must demonstrate that he suffered “a
materially adverse change in h[is] employment status or in the terms and conditions of his
employment.” Kessler v. Westchester Cnty. Dep’t of Soc. Servs., 461 F.3d 199, 207 (2d Cir.
2006). An adverse employment action is one which is “more disruptive than a mere
inconvenience or an alteration of job responsibilities.” Brown v. City of Syracuse, 673 F.3d 141,
150 (2d Cir. 2012) (quoting Joseph v. Leavitt, 465 F.3d 87, 90 (2d Cir. 2006)); see also Albuja v.
Nat’l Broad. Co. Universal, Inc., 851 F. Supp. 2d 599, 606 (S.D.N.Y. 2012) (noting that to
3

According to Defendant, it never requested Plaintiff’s resignation or advised him that
his employment would be terminated. (Def. Mem. 12.)

12

satisfy the “adverse employment action” requirement, a plaintiff must present an employment
action that affected the deprivation of “some ‘tangible job benefits’ such as ‘compensation,
terms, conditions or privileges’ of employment.” (quoting Alfano v. Costello, 294 F.3d 365, 373
(2d Cir. 2002)). A constructive discharge is “functionally the same as an actual termination” and
therefore is considered an adverse employment action.4 Pa. State Police v. Suders, 542 U.S. 129,
148 (2004); see also Fitzgerald v. Henderson, 251 F.3d 345, 357 (2d Cir. 2001) (“Adverse
employment actions include discharge from employment. Such a discharge may be either an
actual termination of the plaintiff’s employment by the employer or a ‘constructive’ discharge.”);
Edwards, 2013 WL 3785620, at *8 (“A constructive discharge is ‘functionally the same as an
actual termination’ and therefore is considered an adverse employment action.” (quoting Pa.
State Police, 542 U.S. at 148)); Trachtenberg v. Dep’t of Educ. of N.Y.C., No. 12-CV-7964, 2013
WL 1335651, at *6 (S.D.N.Y. Apr. 3, 2013) (“[A] ‘constructive discharge’ from employment
does constitute an adverse employment action . . . .”).
A constructive discharge occurs when an employer “intentionally create[s] an intolerable
work atmosphere that force[s the plaintiff] to quit involuntarily.” Andersen v. Rochester City
Sch. Dist., 481 F. App’x 628, 632 (2d Cir. 2012) (quoting Serricchio v. Wachovia Secs. LLC, 658
F.3d 169, 185 (2d Cir. 2011)), cert. denied, 133 S. Ct. 836 (2013); see also Edwards, 2013 WL
3785620, at *8 (“A constructive discharge occurs only ‘when an employer intentionally creates a
work atmosphere so intolerable that [the plaintiff] is forced to quit involuntarily.’” (quoting
Borski v. Staten Island Rapid Transit, 413 F. App’x 409, 411 (2d Cir. 2011)) (internal quotation
4

Defendant argues in both its Memorandum of Law and its Reply Memorandum of Law
that Plaintiff’s constructive discharge “claim” fails. (Def. Reply at 16.) Plaintiff clarified at oral
argument that he was not asserting a separate constructive discharge claim, but rather sought to
maintain his sexual harassment and retaliation claims on a theory of constructive discharge.
(Oral Arg. Tr. 3:11–17.)

13

marks omitted)); Stofsky v. Pawling Cent. Sch. Dist., 635 F. Supp. 2d 272, 299 (S.D.N.Y. 2009)
(“Constructive discharge occurs when the employer, rather than acting directly, deliberately
makes an employee’s working conditions so intolerable that the employee is forced into an
involuntary resignation.” (quoting Morris v. Schroder Capital Mgmt. Int’l, 481 F.3d 86, 88 (2d
Cir. 2007))). “To find that an employee’s resignation amounted to a constructive discharge, ‘the
trier of fact must be satisfied that the . . . working conditions would have been so difficult or
unpleasant that a reasonable person in the employee’s shoes would have felt compelled to
resign.’” Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 73 (2d Cir. 2000) (quoting
Lopez v. S.B. Thomas, 831 F.2d 1184, 1188 (2d Cir. 1987)); Delville v. Firmenich Inc., No. 08CV-10891, 2013 WL 363391, at *10 n.9 (S.D.N.Y. Jan. 31, 2013) (quoting Whidbee, 223 F.3d at
73)); see also Edwards, 2013 WL 3785620, at *9 (“[I]n order to determine whether the work
conditions were ‘so intolerable as to compel resignation,’ the conditions must be ‘assessed
objectively by reference to a reasonable person in the employee’s position.’” (quoting Petrosino
v. Bell Atl., 385 F.3d 210, 229 (2d Cir. 2004))).
A.

Threats of Termination

In order to establish constructive discharge, it is not enough for a plaintiff to resign
instead of facing potential disciplinary charges, Bailey v. N.Y.C. Bd. of Educ., 536 F. Supp. 2d
259, 266 (E.D.N.Y. 2007), nor is it enough for a plaintiff to fear termination, Massie v. Ikon
Office Solutions. Inc., 381 F. Supp. 2d 91, 96–100 (N.D.N.Y. 2005) (where plaintiff had received
numerous warnings regarding his inadequate work performance and was told he might be
terminated if he filed a complaint against his supervisor, his “fear of being terminated [was] not
an adverse employment action because of its lack of consequence”). However, threats of
termination may be sufficient to show constructive discharge. Grey v. City of Norwalk Bd. of
Educ., 304 F. Supp. 2d 314, 324 (D. Conn. 2004) (citing Lopez v. S.B. Thomas, Inc., 831 F.2d
14

1184, 1188 (2d Cir. 1987)); see also Chertkova v. Conn. Life Ins. Co., 92 F.3d 81, 89–90 (2d Cir.
1996) (“In Lopez, we held that telling plaintiff he would be fired following probation, ‘no matter
what he did to improve his allegedly deficient performance,’ was sufficient alone to support a
finding of constructive discharge.” (quoting Lopez, 831 F.2d at 1188)); Stout v. Town of
Tonawanda Police Dep’t, No. 09-CV-261S, 2011 WL 1260049, at *4 (W.D.N.Y. Mar. 31, 2011)
(“The most common constructive discharge case involves veiled or direct threats that failure to
resign will result in discharge.” (citation and internal quotation marks omitted)); Silverman v.
City of New York, 216 F. Supp. 2d 108, 115–66 (E.D.N.Y. 2002) (“[A] number of courts in this
circuit have held that threats of termination may be sufficient to establish constructive
discharge.”), aff’d, 64 F. App’x 799 (2d Cir. 2003); Valdes v. N.Y.C. Dep’t of Env. Protection,
No. 95-CV-10407, 1997 WL 666279, at *3 (S.D.N.Y. Oct. 27, 1997) (“[A]n employer’s clearly
expressed desire that an employee resign has been held sufficient to find a constructive
discharge.”).
Courts look to a variety of factors to determine whether threats of termination are
sufficient, such as whether the threats of termination were repeated, direct, or involved additional
adverse conduct. See e.g. Murray v. Town of N. Hempstead, 853 F. Supp. 2d 247, 270 (E.D.N.Y.
2012) (finding no construtive discharge where employee merely heard a rumor that supervisor
wanted him terminated); McCalla v. SUNY Downstate Med. Ctr., No. 03-CV-2633, 2006 WL
1662635, at *5 (E.D.N.Y. June 8, 2006) (finding that plaintiff successfully pled an adverse
employment action where defendants presented plaintiff with a resignation letter and told him if
he did not sign it, he would be fired and his career would be ruined); Grey, 304 F. Supp. 2d at
324 (noting that a variety of circumstances made employee’s situation “intolerable,” including:
the repeated threat that her position would be eliminated; a rumored letter announcing her

15

termination; petty reprimands; and suggestion that the District buyback her contract and
subsequent comment that she should consider herself “finished”); Valdes, 1997 WL 666279, at
*3 (“plaintiff’s allegation that his supervisors told him that ‘it was best if [he] resigned’ because
he ‘was going to be terminated’ creates a triable issue of fact on the question of whether a
constructive discharge occurred” (citation omitted)). “A triable issue of fact as to constructive
discharge may be demonstrated by proof that an employee was presented with the decision to
resign or be fired.” Rupert v. City of Rochester, Dep’t of Env. Servs., 701 F. Supp. 2d 430, 440
(W.D.N.Y. 2010).
Plaintiff has presented evidence from which a jury could find that Defendant decided to
terminate him, and that he was forced to choose between resignation and termination. According
to Larson, Plaintiff’s Union Advisor, Robbins informed her that Defendant was “unequivocally
seeking the termination” of Plaintiff. (Larson Decl. ¶ 5.) Larson informed Plaintiff that he
would be terminated if he did not resign and advised him to resign or risk “irreparable” damage
to his reputation. (Pl. Dep. 224:24–225:2.) According to Plaintiff’s testimony, Robbins
communicated to him directly that he would be terminated if he did not resign. (Pl. Dep.
224:18–22.)5 According to Plaintiff, Robbins made it clear that suspension was not an option

5

Defendant cites to an earlier portion of Plaintiff’s deposition testimony where Plaintiff
appeared to indicate that only Larson, not Robbins, told him that he would be terminated if he
did not resign. (Def. Reply 3–4.) Defendant argues that statements to the contrary must be
disregarded. (Id. at 4.) During the same deposition, however, Plaintiff clarified that Robbins had
indicated to him that he would be terminated. (Pl. Dep. 224:18–225:2.) Accordingly, the Court
finds that a genuine issue of fact exists regarding whether Plaintiff heard directly from Robbins
that he would be terminated. See Barrows v. Seneca Foods Corp., 512 F. App’x 115, 119 (2d
Cir. Feb. 2013) (holding that “gaps and inconsistencies” in the plaintiff’s testimony as long as
the testimony is not “wholly conclusory, contradictory, or incomplete” should go to the jury for
the “jury to ‘assess[ ] . . . a witness’s credibility’” (alteration in original) (quoting Fincher v.
Depository Trust & Clearing Corp., 604 F.3d 712, 725 (2d Cir. 2010))); Hodge v. Vill. of
Southampton, 838 F. Supp. 2d 67, 76 (E.D.N.Y. 2012) (stating that in order to find for a plaintiff

16

and told him that she was “being pressured by a committee” to terminate him. (Pl. Dep. 152:1–
153:8.) Robbins informed him that if he resigned first, she would discontinue her investigation,
rather than placing an official finding against Plaintiff in his folder. (Pl. Dep. 153:3–8.) Plaintiff
testified that he believed, based on the communications from Robbins and Larson, that he would
be terminated if he did not resign. (Pl. Dep. 225:3–6.)
Defendant has presented contrary evidence indicating that it had not yet decided what
disciplinary action would be imposed and that Robbins had not requested Plaintiff’s resignation
or advised Plaintiff that he would be terminated if he did not resign.6 (Def. Mem. 12; Robbins
Aff. ¶ 38.) However, it is for a jury to decide whether to credit Plaintiff’s version or the
Defendant’s version of the facts. See In re Fosamax Products Liab. Litig., 707 F.3d 189, 194 n.4
(2d Cir. 2013) (“[T]he general rule remains that ‘a district court may not discredit a witness’s
deposition testimony on a motion for summary judgment, because the assessment of a witness’s
credibility is a function reserved for the jury.’” (quoting Fincher v. Depository Trust and
Clearing Corp., 604 F.3d 712, 725 (2d Cir. 2010)), cert. denied, 133 S. Ct. 2783 (2013); Milfort
v. Prevete, No. 10-CV-4467, 2013 WL 519041, at *5 (E.D.N.Y. Feb. 13, 2013) (“[T]he
credibility of witnesses is not to be assessed by the court on a motion for summary judgment.
Resolutions of credibility conflicts and choices between conflicting versions of the facts are
matters for the jury, not for the court on summary judgment.” (citations and internal quotation
marks omitted)).

at summary judgment, there need not be one interpretation of the deposition testimony, as long
as “a rational jury” could draw the interpretation favorable to the non-moving party and it was “a
reasonable” interpretation).
6

Defendant states that Robbins was not the final decision maker with respect to a
potential termination, but that it was a joint effort between Robbins and the Executive Vice
President. (Tr. 10:6–9.)

17

B.

Availability of Grievance Procedures

Defendant maintains that, even if Plaintiff believed he was about to be terminated, he was
not constructively discharged because he had rights under his Union’s collective bargaining
agreement (“Collective Bargaining Agreement”). (Def. Reply Mem. 16–17.) “[C]ourts in this
circuit generally have refused to find a constructive discharge where an employee had an avenue
through which he could seek redress for the allegedly ‘intolerable’ work atmosphere leading up
to his resignation, but failed to take advantage thereof.” Silverman, 216 F. Supp. 2d at 115
(“[T]he fact that [plaintiff] could have sought a hearing before being terminated eviscerates his
claim that threats of termination created an ‘intolerable’ situation which left him with but one
choice: resignation.”); see also Spence v. Md. Cas. Co., 995 F.2d 1147, 1156–57 (2d Cir. 1993)
(finding that a plaintiff claiming defendants deliberately attempted to make him ill in order to
force him to resign failed to establish constructive discharge because, inter alia, he could have
lodged a complaint with human resources about the behavior); Weisbecker v. Sayville Union
Free School Dist., 890 F. Supp. 2d 215, 235–36 (E.D.N.Y. 2012) (holding that a supervisor’s
recommendation that plaintiff be terminated was not a constructive discharge because, among
other things, plaintiff had the “ability to request reasons for the recommendation from [the
supervisor] and submit a response”); Rodriguez v. Graham–Windham Servs. To Families &
Children, No. 99-CV-10447, 2001 WL 46985, at *6 (S.D.N.Y. Jan. 18, 2001) (finding that one
of the reasons plaintiff’s demotion did not result in constructive discharge was that she was
aware of her employer’s complaint resolution procedures but made no complaint to human
resources alleging discrimination or mistreatment); Katz v. Beth Israel Med. Ctr., No. 95-CV7183, 2001 WL 11064, at *13 (S.D.N.Y. 2001) (holding that there was no constructive discharge
where plaintiff voluntarily resigned after being “unfairly disciplined,” yelled at, and threatened
with termination at least once, because, among other things, she could have filed a grievance
18

regarding the unfair reprimands); Stembridge v. City of New York, 88 F. Supp. 2d 276, 284–85
(S.D.N.Y. 2000) (finding no constructive discharge where plaintiff was suspended without pay,
an informal conference was scheduled to address the disciplinary charges against plaintiff,
plaintiff was given the opportunity to appear at the conference with counsel, and plaintiff had the
right to appeal and request a union hearing, but plaintiff resigned on the date of the informal
conference and requested that it be cancelled, because “in light of the fair hearing and
opportunity to be heard before an independent arbiter, a rational jury could not plausibly find that
a reasonable person in plaintiff’s situation would have felt compelled to resign”).
However, these cases generally involve circumstances in which the plaintiff had access to
a hearing prior to termination or had reason to believe that after-the-fact grievance procedures
might be successful. Rupert, 701 F. Supp. 2d at 440–41 (distinguishing cases finding
constructive discharge claims foreclosed and stating that it was “an unsettled proposition at best”
as to whether such authority applied to circumstances in which “the plaintiff-employee [was]
subject to automatic termination in the event that he or she chose not to grieve the decision”);
see, e.g. Silverman, 216 F. Supp. 2d at 116 (“[T]he fact that [plaintiff] could have sought a
hearing before being terminated eviscerates his claim that threats of termination created an
‘intolerable’ situation which left him with but one choice: resignation.”), aff’d, 64 F. App’x 799
(2d Cir. 2003); Bailey, 535 F. Supp. 2d at 265–67 (finding that plaintiff-teacher who resigned
before a hearing regarding disciplinary charges brought against him was not constructively
discharged, as he could have responded to the charges and raised complaints of discrimination
during the hearing); Stembridge, 88 F. Supp. 2d at 284–86 (finding no constructive discharge
where “plaintiff had the opportunity to present his side of the story in the scheduled disciplinary
hearing,” because “[i]t is impossible to know whether the hearing could have actually remedied

19

the situation or address the . . . misconduct because plaintiff chose not to participate in the
process”); Weisbecker, 890 F. Supp. 2d at 235–36 (finding that recommendation that plaintiff be
terminated as a probationary teacher was not a constructive discharge because, among other
things, plaintiff could have requested reasons for the recommendation and submitted a response);
Katz, 2001 WL 11064, at *13 (finding that where plaintiff was aware of another employee
successfully challenging her termination through after-the-fact grievance procedures and being
reinstated, plaintiff failed to establish constructive discharge, because a reasonable person would
not have felt compelled to resign since they knew they had an effective process available to them
even if they were terminated).
Defendant maintains that the Collective Bargaining Agreement “explicitly provided
Plaintiff with the opportunity to grieve any disciplinary actions with which he disagreed.” (Def.
Reply 17.) Although Defendant maintains that it had not yet decided whether to terminate
Plaintiff, Plaintiff has presented evidence that he reasonably understood that the decision had
been made. See Rupert, 701 F. Supp. 2d at 441 (distinguishing cases in which constructive
discharge claims were foreclosed by failure to take “advantage of employer-provided
opportunities to challenge the allegedly intolerable working conditions” because, among other
things, plaintiff alleged that the defendant “clearly expressed its intention to terminate him upon
the conclusion of the grievance process,” and in none of the other cases “was the plaintiffemployee subject to automatic termination in the event that he or she chose not to grieve the
decision”). Therefore, for purposes of this motion, the Court will assume that Plaintiff would
have been terminated had he not resigned. Unlike most of the cases involving the availability of
grievance procedures discussed above, Plaintiff could not have availed himself of grievance

20

procedures prior to resigning. (Oral Arg. Tr. 11:10–12, 24:5–10.) Instead, Plaintiff would have
had to wait to be terminated before challenging the decision. (Id. at 11:10–12, 24:5–10.)
Under the Collective Bargaining Agreement, an employee may complain to the
department head, then to human resources, and then the complaint may be appealed to the
arbitration board if the union so chooses. (Donnelly Decl. Ex. F, Article XXII.) Shortly prior to
Plaintiff’s termination, he filed a sexual harassment complaint with human resources regarding
Birmingham’s behavior. C.f. Rodriguez, 2001 WL 46985, at *6 (on claims of race and age
discrimination, plaintiff could not establish she was constructively discharged following her
demotion because, inter alia, plaintiff never complained to human resources of discrimination or
mistreatment). Plaintiff has presented evidence that, subsequent to his filing a complaint, two
department heads, Pernice and Romano, pressured Wilson into submitting a statement against
Plaintiff, (Wilson Decl. ¶¶ 8–9), Romano refused to allow Birmingham to withdraw her
complaint against Plaintiff, (Scott Decl. ¶ 8), and Defendant “unequivocally” sought Plaintiff’s
termination, (Larson Decl. ¶ 5). Since the first two steps of the grievance process involve the
department heads and human resources, a jury could determine that a reasonable person in
Plaintiff’s position would have concluded that, if he waited to be terminated, the available
grievance procedures would not have impacted the outcome, since the relevant department heads
and human resources were the ones taking action against him and applying pressure to others to
submit statements against Plaintiff.7

7

Plaintiff argues that he thought grievance procedures would be a rubber stamp process
because he did not know of anyone who had been successful. (Oral Arg. Tr. 22:9–19.)
Defendant disagrees, arguing that Plaintiff had previously been involved in the grievance process
and was aware of his contractual rights. (Def. Mem. 22.) The central inquiry is whether a
reasonable person in Plaintiff’s position would have believed that they had no other option but
resignation. See Giller v. Oracle USA, Inc., 512 F. App’x 71, 74 (2d Cir. 2013) (holding that the

21

Defendant argues that, even if Plaintiff thought the relevant department heads and human
resources were biased against him, independent decision-makers would have had ultimate
authority regarding a complaint filed through the grievance procedures. (Oral Arg. Tr. 25:23–
26:6.) According to the Collective Bargaining Agreement, a complaint denied by the department
head and human resources could only be appealed to an outside arbitrator with the support of the
Union, and Plaintiff was advised by his Union Advisor that he should resign or risk “irreparable”
damage to his reputation. (Pl. Dep. 153:12–24, 224:18–225:6.) Plaintiff may reasonably have
understood that he could not rely on a Union appeal. See Rupert, 701 F. Supp. 2d at 435 (stating
that plaintiff, who did not request available arbitration procedures, may have reasonably
understood his union representative’s statement that “[t]hey were done[;][t]his was what I got” to
mean that the union would refuse to arbitrate on his behalf and that retirement was the only
viable option (alterations in original)). Under these circumstances, a reasonable jury could find
that Plaintiff was compelled to resign, even though the Collective Bargaining Agreement
allowed for grievance procedures post-termination. See Chertkova, 92 F.3d at 89 (noting that in
Lopez, the Second Circuit held “that telling plaintiff he would be fired following probation, ‘no
matter what he did to improve his allegedly deficient performance,’ was sufficient alone to
support a finding of constructive discharge” (quoting Lopez, 831 F.2d at 1188)). Plaintiff has

standard for constructive discharge is whether the plaintiff’s “working conditions are ‘so difficult
or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to
resign’” (quoting Terry v. Ashcroft, 336 F.3d 128, 152 (2d Cir. 2003)); Rupert v. City of
Rochester, Dep’t of Envtl. Servs., 701 F. Supp. 2d 430, 440 (W.D.N.Y. 2010) (“A triable issue of
fact as to constructive discharge may be demonstrated by proof that an employee was presented
with the decision to resign or be fired.”). In light of Plaintiff’s most recent experience with
Defendant’s grievance procedures, as discussed above, a reasonable jury could conclude Plaintiff
thought he had no other option but to resign.

22

provided sufficient evidence to create a material issue of fact as to whether he suffered an
adverse employment action.
2.

Inference of Discrimination

Inference of discrimination “is a ‘flexible [standard] that can be satisfied differently in
differing factual scenarios.’” Howard v. MTA Metro-N. Commuter R.R., 866 F. Supp. 2d 196,
204 (S.D.N.Y. 2011) (quoting Chertkova, 92 F.3d at 91). “No one particular type of proof is
required to show that Plaintiff’s termination occurred under circumstances giving rise to an
inference of discrimination.” Ofoedu v. St. Francis Hosp. & Med. Ctr., No. 04-CV-1707, 2006
WL 2642415, at *14 (D. Conn. Sept. 13, 2006). An inference of discrimination can be raised by
“showing that an employer treated [an employee] less favorably than a similarly situated
employee outside his protected group.” Abdul-Hakeem v. Parkinson, --- F. App’x ---, 2013 WL
3111300, at *1 (2d Cir. June 21, 2013) (quoting Ruiz, 609 F.3d at 493); see also Shlafer v.
Wackenhut Corp., 837 F. Supp. 2d 20, 25 (D. Conn. 2011) (“Plaintiff must set forth factual
circumstances from which discriminatory motivation may be inferred. Discriminatory
motivation may be established by allegations of preferential treatment given to similarly situated
individuals, or remarks conveying discriminatory animus.” (citations omitted)); Mabry v.
Neighborhood Defender Serv., 769 F. Supp. 2d 381, 392 (S.D.N.Y. 2011) (“Allegations
supporting motive may include preferential treatment given to similarly situated individuals or
remarks that convey discriminatory animus.”). Such a showing “is a recognized method of
raising an inference of discrimination for the purposes of making out a prima facie case.” Ruiz,
609 F.3d at 493 (internal quotation marks omitted). “The ‘standard for comparing conduct
requires a reasonably close resemblance of the facts and circumstances of plaintiff’s and
comparator’s cases,’ such that ‘the comparator must be similarly situated to the plaintiff in all
material respects.’” Abdul-Hakeem, --- F. App’x at ---, 2013 WL 3111300, at *1 (quoting Ruiz,
23

609 F.3d at 494); see also Drummond v. IPC Int’l, Inc., 400 F. Supp. 2d 521, 532 (E.D.N.Y.
2005) (“Under Second Circuit law, where a plaintiff seeks to make out a case of discrimination
‘by pointing to the disparate treatment of a purportedly similarly situated employee, the plaintiff
must show that [ ]he shared sufficient employment characteristics with that comparator so that
they could be considered similarly situated.’” (alteration in original) (quoting Shumway v. United
Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir. 1997))).
The two positions need not be identical however, they need only be “sufficiently similar”
to support at least a “minimal inference that the difference in treatment may be attributable to
discrimination.” Cutler v. Stop & Shop Supermarket Co., L.L.C., 513 F. App’x 81, 83 (2d Cir.
2013) (quoting McGuiness v. Lincoln Hall, 263 F.3d 49, 54 (2d Cir. 2001)); see also DeFina v.
Meenan Oil Co., Inc., No. 10-CV-5068, 2013 WL 596622, at *10 (E.D.N.Y. Feb. 15, 2013)
(“The law does not require the employees to be similarly situated in all respects, but rather
requires that they be similarly situated in all material respects.” (citing McGuiness, 263 F.3d at
54)). “An employee is similarly situated to co-employees if they were (1) subject to the same
performance evaluation and discipline standards and (2) engaged in comparable conduct.”
Abdul-Hakeem, --- F. App’x at ---, 2013 WL 3111300, at *1 (quoting Ruiz, 609 F.3d at 493–94)
(internal quotation marks omitted); see also Graham v. Long Island R.R., 230 F.3d 34, 39–40 (2d
Cir. 2000) (“We have said that to satisfy Shumway’s ‘all material respects’ standard for being
similarly situated, a plaintiff must show that her co-employees were subject to the same
performance evaluation and discipline standards. In addition, the standard we used in Shumway
requires plaintiff to show that similarly situated employees who went undisciplined engaged in
comparable conduct.” (citations omitted)). “In other words, there should be an objectively
identifiable basis for comparability.” Graham, 230 F.3d at 40 (internal quotation marks omitted)

24

(“Hence, the standard for comparing conduct requires a reasonably close resemblance of the
facts and circumstances of plaintiff's and comparator’s cases, rather than a showing that both
cases are identical.”). “Ordinarily, whether other employees are similarly situated is a factual
issue that should be submitted to a jury, but ‘[t]his rule is not absolute . . . and a court can
properly grant summary judgment where it is clear that no reasonable jury could find the
similarly situated prong met.’” Sweeney v. Leone, No. 05-CV-871, 2006 WL 2246372, at *13
(D. Conn. July 31, 2006) (quoting Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499 n.2
(2d Cir. 2001)); see also Lugo v. City of New York, --- F. App’x ---, ---, 2013 WL 1811271, at *2
(2d Cir. May 1, 2013) (finding that the plaintiff had not provided “any information from which a
reasonable jury could conclude that the officers referenced were similarly situated to” the
plaintiff).
A.

Similarly Situated

Defendant argues that Plaintiff and Birmingham were not similarly situated because
Plaintiff and Birmingham held different positions and reported to different supervisors —
Birmingham was a registered nurse supervised by Romano and Plaintiff was an MRI technician
supervised by Pernice. (Def. Mem. 14.) Similarly situated employees do not necessarily need to
share the same position, “[n]or do they necessarily need to report to the same supervisor.” Foss
v. Coca Cola Enters., No. 07-CV-1322, 2011 WL 1303346, at *8 (E.D.N.Y. Mar. 31, 2011)
(“‘All material respects’ does not . . . mean ‘all respects.’” (quoting McGuinness, 263 F.3d at 53–
54)); see Gorzynski, 596 F.3d at 109 n.7 (“Although an employee’s position is relevant to the
analysis, employees need not be of the exact same rank to be considered ‘similarly situated.”);
Berube v. Great Atl. & Pac. Tea Co., 348 F. App’x 684, 686 (2d Cir. 2009) (“[T]he fact that [the
plaintiff] had a different supervisor from the employees he cites as comparators does not appear
sufficient in itself to preclude [the plaintiff] from showing that he was subject to the same
25

workplace standards and disciplinary procedures.”); McGuinness, 263 F.3d at 53–54 (it is a
“misreading” of Second Circuit law to hold that “another employee cannot be similarly situated
to a plaintiff unless the other employee had the same supervisor, worked under the same
standards, and engaged in the same conduct”); Julian v. Securitas Sec. Servs. USA, Inc., No. 08CV-1715, 2010 WL 1553778, at *9 (D. Conn. Apr. 19, 2010) (“[T]he fact that different
employees were supervised and disciplined by different supervisors might make them
inappropriate comparators depending on the particular facts involved, but it does not as a matter
of law preclude the fact finder from making a comparison if the facts suggests that a comparison
is appropriate.”).
Although Plaintiff and Birmingham held different jobs and were supervised by different
individuals, they worked at the Medical Center, in the same department, and were subject to the
same rules and regulations promulgated in Defendant’s Sexual Harassment Policy. Defendant’s
Sexual Harassment Policy prohibits “[i]nappropriate or unwelcome conduct of a sexual nature”
by “employees, supervisors, patients, residents, visitors, vendors or any other person.” (Def.
56.1 ¶ 9.) By its terms, the Sexual Harassment Policy applies to all employees, and Defendant
has not argued, nor is there any evidence to suggest, that the policy was applied more stringently
to MRI technicians than registered nurses. See Delia v. Donahoe, 862 F. Supp. 2d 196, 216
(E.D.N.Y. 2012) (sufficient evidence that plaintiff and coworker were “subject to the same
workplace standards,” even though the coworker, unlike plaintiff, was a supervisor, because
defendant’s Workplace Violence Policy “explicitly state[d] that it [was] applicable to all
employees,” and defendant did “not suggest[] that supervisory employees were subject to a
different set of standards with respect to violence or threatening actions in the workplace”);
White v. Conn., Dep’t of Corr., No. 08-CV-1168, 2010 WL 3447505, at *5 (D. Conn. Aug. 24,

26

2010) (although employees held different positions and different ranks, a reasonable jury could
find that they were similarly situated because the directive, by its terms, applied to “[e]ach
employee,” and there was no evidence to suggest that the directive was applied “more stringently
to supervisory employees”). Although Plaintiff and Birmingham reported to different
supervisors, both were investigated for violations of this universally applicably policy, not for
“supervisor-specific” violations. See White, 2010 WL 3447505, at *6 (disregarding defendant’s
argument that plaintiff was subject to “supervisor specific” workplace standards where “the
investigatory report and the recommendations for dismissal d[id] not mention any violations that
were ‘supervisor-specific,’ instead focusing simply on [plaintiff’s] behavior in allegedly
violating the universally applicable [directive]”). Moreover, they were both investigated by
Robbins. (Def. 56.1 ¶¶ 138; Pl. 56.1 ¶ 138.) Therefore, viewing the facts in the light most
favorable to Plaintiff, it appears that Plaintiff was not subjected to different “workplace
standards” than Birmingham and that they were similarly situated in all material respects.8
B.

Comparable Conduct

Defendant also argues that Plaintiff’s conduct — taking a photograph “under the dress of
Ms. Birmingham” and sharing it with his co-workers — was objectively more severe than that of
Birmingham. (Def. Mem. 13–14.) “When a plaintiff’s misconduct is objectively more serious
than that of a proposed comparator, differential treatment by the employer does not create an
issue of fact that will defeat a motion for summary judgment.” Conway v. Microsoft Corp., 414
F. Supp. 2d 450, 464 (S.D.N.Y. 2006); see Barney v. Consol. Edison Co. of N.Y., 391 F. App’x
8

Defendant notes that Plaintiff and Birmingham were subject to different collective
bargaining agreements. (Def. Mem. 15.) Although Defendant asserts that “the terms and
conditions of Plaintiff’s employment were governed by [his] Union’s CBA,” there is no evidence
before the Court that Defendant’s Sexual Harassment Policy was applied differently to
employees based on the terms of their respective collective bargaining agreements.

27

993, 996 (2d Cir. 2010) (no reasonable jury could find that plaintiff was similarly situated to coworker, where plaintiff “intentionally entered false overtime data in order to receive more pay
and then attempted to cover it up,” and the coworker “merely failed to review [plaintiff’s]
overtime entries correctly, conduct from which [the co-worker] did not stand to benefit”); Cruz v.
Coach Stores, Inc., 202 F.3d 560, 568 (2d Cir. 2000) (plaintiff who “engaged in a physical fight”
was not similarly situated to co-workers whose “behavior — offensive thought it may have
been — involved words only”). Both Plaintiff and Birmingham engaged in sexually
inappropriate conduct. (Def. 56.1 ¶¶ 174–75; Pl. 56.1 ¶¶ 174–75.) However, there are a number
of disputed facts regarding the seriousness of Plaintiff’s conduct. First, the parties dispute the
contents of the photograph — whether it showed Birmingham’s knee and lower thigh or
something more explicit. (Compare Pl. Dep. 126:19, 129:13–14; and Wilson Decl. ¶ 6; with
Hawkins Aff. ¶¶ 6, 8.) Second, the parties dispute whether Plaintiff actively showed the
photograph to his co-workers, or whether he gave his telephone to Hawkins, who shared the
photograph with others. (Def. 56.1 ¶ 75; Pl. 56.1 ¶ 75.) Moreover, Defendant’s own human
resources representative, Robbins, testified that Birmingham’s conduct was worse than
Plaintiff’s. (Robbins Dep. 70:2–25.) Furthermore, whether Plaintiff’s conduct, centering around
one violation of Defendant’s Sexual Harassment Policy, is more serious than Birmingham’s
ongoing sexually explicit behavior, is a decision best left for the jury. See Temple v. City of New
York, No. 06-CV-2162, 2010 WL 3824116, at *8–9 (E.D.N.Y. Sept. 23, 2010) (although
plaintiff’s supervisor concluded that plaintiff’s conduct was “more egregious than that of her
comparators, factual issues concerning comparable conduct such as those presented in this case
are appropriately resolved by a jury” (citing Graham, 230 F.3d at 42–43)).

28

Defendant also argues that Plaintiff’s conduct was more serious because Plaintiff
contacted Birmingham demanding that she withdraw her complaint against him after he was
instructed by Robbins not to have any contact with Birmingham, and “used his position as
President of the Union to coerce co-workers into signing statements that he prepared in support
of his complaint against Birmingham.” (Def. Mem. 20.) These facts are disputed by Plaintiff.
Although Plaintiff admits that he approached Birmingham and requested that she rescind her
complaint against him, he maintains that Robbins never instructed him not to approach
Birmingham. (Pl. Decl. ¶ 4.) Plaintiff states that, to the contrary, Robbins told him that the
investigation would cease if Birmingham rescinded her complaint. (Id.) Plaintiff’s contact of
Birmingham was not necessarily unreasonable, especially in light of the evidence indicating that
Birmingham had not initially wanted to file the complaint in the first place and later attempted to
rescind the complaint. (See e.g., Pl. Decl. ¶ 4; Wilson Decl. ¶ 11; Scott Decl. ¶ 8.) Plaintiff also
maintains that he did not threaten or coerce Klein, Garrant or Krieger into submitting statements
on his behalf, and this is supported by statements from Garrant and Kriegar. (Pl. Dep. 225:7–
226:5; Garrant Dep. 16:9–18, 22:17–22; Krieger Decl. ¶ 5.) Although Klein allegedly told
Robbins that he felt pressured into giving a statement, Plaintiff testified that, at the time he
obtained Klein’s statement, Klein did not say or do anything that would suggest that he was
uncomfortable signing the statement. (Pl. 56.1 ¶¶ 153–154.2; Pl. Dep. 225:7–25.) Based on this
evidence, a reasonably jury could conclude that Birmingham engaged in conduct that was as
serious as, if not more serious than, Plaintiff.9

9

Defendant further argues that Plaintiff’s failure to file his complaint against
Birmingham before his own conduct was investigated requires dismissal. (Def. Mem. 22.)
Plaintiff has explained why he did not previously file his complaint, and he has provided
evidence that he, and others, did not appreciate Birmingham’s explicit sexual behavior. (Pl. Dep.

29

C.

Different Treatment

Plaintiff has established that Birmingham was treated more favorably than he was. See
Berube, 348 F. App’x at 686 (holding that the plaintiff “proffered sufficient evidence to make
out a prima facie claim of discriminatory intent by demonstrating that younger, similarly-situated
employees” were treated “more favorably” than he was); Williams v. Alterra Assisted Living
Home Health Corp./Brookdale, No. 07-CV-0492, 2010 WL 5072587, at *6 (W.D.N.Y. Dec. 10,
2010) (“[T]o satisfy a prima facie case, Plaintiff must show that these similarly situated
employees were treated more favorably.”). Both Birmingham and Plaintiff engaged in sexually
explicit conduct and filed sexual harassment complaints. Construing the evidence in the light
most favorable to Plaintiff, Plaintiff was constructively discharged, while Birmingham was not
disciplined. A reasonably jury could conclude that Plaintiff and Birmingham shared sufficient
employment characteristics to be considered similarly situated, “engaged in conduct of
comparable seriousness, the consequences for which were then applied inconsistently.” Temple,
2010 WL 3824116, at *8.
Plaintiff has presented sufficient evidence to demonstrate that there are genuine issues of
material fact as to the existence of a prima facie case of gender discrimination based upon the
alleged disparate disciplinary treatment by Defendant.
ii.

Non-Discriminatory Explanation

Once a prima facie case of gender discrimination has been established, a presumption of
discrimination arises, and Defendant must articulate a “legitimate, non-discriminatory reason for
the employment action.” Broich v. Inc. Vill. of Southampton, 462 F. App’x 39, 42 (2d Cir. 2012)

at 108:5–112:24, 121:16–21, 142:20–143:6, 195:13–196:24, 221:1–222:15; Horn Dep. 10:3–
13:15; Wilson Decl. ¶ 5; Krieger Decl. ¶ 5; Scott Decl. ¶ 5.) It is for the jury to determine how
to assess the timing of Plaintiff’s complaint.

30

(quoting Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000)), cert. denied, 568
U.S. ---, ---, 133 S.Ct. 527 (2012). An employer’s burden to overcome the presumption of
discrimination “is not a particularly steep hurdle.” Hyek, 702 F. Supp. 2d at 93. It “is one of
production, not persuasion; it can involve no credibility assessment.” Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 142 (2000); see also Lambert v. McCann Erickson, 543 F.
Supp. 2d 265, 278 (S.D.N.Y. 2008) (using the Reeves standard). Defendant argues that Plaintiff
was not terminated, but was facing yet-to-be-determined discipline for his violation of the
company’s sexual harassment policies. (Def. Mem. at 19–20.) Thus, Defendant satisfies its
burden. Plaintiff must, therefore, meet his burden of demonstrating that the legitimate reason
proffered by Defendant is pretext. Fincher, 604 F.3d at 720.
iii. Pretext
To avoid summary judgment, Plaintiff must offer evidence from which a reasonable jury
could conclude by a preponderance of the evidence that gender discrimination played a role in
the adverse action taken by Defendant. Summa v. Hofstra Univ., 708 F.3d 115, 125 (2d Cir.
2013). A “plaintiff is not required to show that the employer’s proffered reasons were false or
played no role in the employment decision, but only that they were not the only reasons and that
the prohibited factor was at least one of the ‘motivating’ factors.” Holcomb, 521 F.3d at 138
(quoting Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203 (2d Cir. 1995)); see also Nassar, 570
U.S. at ---, 133 S.Ct. at 2526; Garcia v. Hartford Police Dep’t, 706 F.3d 120, 127 (2d Cir. 2013).
At the pretext stage, “[a] court may re-consider evidence presented to find an inference of
discrimination at the prima facie stage.” Ingenito v. Riri USA, Inc., No. 11-CV-2569, 2013 WL
752201, at *12 (E.D.N.Y. Feb. 27, 2013); see Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 173
(2d Cir. 2006) (holding that a plaintiff may demonstrate pretext “either by the presentation of
additional evidence showing that the employer’s proffered explanation is unworthy of credence,
31

or by reliance on the evidence comprising the prima facie case, without more”); Back v. Hastings
on Hudson Union Free Sch. Dist., 365 F.3d 107, 124 (2d Cir. 2004) (“[T]he plaintiff may,
depending on how strong it is, rely upon the same evidence that comprised her prima facie case,
without more.”); see also Herbert, 748 F. Supp. 2d at 241 (“To defeat summary judgment,
[plaintiff] need only show that ‘the evidence taken as a whole, supports a sufficient rational
inference of discrimination.’” (citations omitted)).
Plaintiff argues that the alleged disparate treatment of Birmingham presented to establish
his prima facie case also demonstrates that Defendant’s explanation for his alleged constructive
discharge is pretextual. See Graham, 230 F.3d at 43 (“A showing that similarly situated
employees belonging to a different [protected] group received more favorable treatment can also
serve as evidence that the employer’s proffered legitimate, non-discriminatory reason for the
adverse job action was a pretext for racial discrimination.” (citing Hargett, 78 F.3d at 939));
Temple, 2010 WL 3824116, at *10 (“The Second Circuit has stated that, ‘[a] showing that
similarly situated employees belonging to a different racial group received more favorable
treatment can also serve as evidence that the employer’s proffered legitimate, non-discriminatory
reason for the adverse job action was a pretext for racial discrimination.’” (quoting Graham, 230
F.3d at 43)). Defendant argues that it is entitled to summary judgment because Plaintiff
“engaged in more egregious misconduct than Birmingham.” (Def. Mem. 14.) Plaintiff’s
conduct, while certainly inappropriate, could be perceived as relatively minor — taking a
photograph of Birmingham and Hawkins at the same time as a number of other male coworkers,
allowing Hawkins to view the photograph on his telephone, talking to Birmingham about her
complaint, and asking coworkers to submit statements on his behalf — especially when
compared to the ongoing, sexually explicit conduct in which Birmingham engaged. However,

32

this is an issue of fact to be determined by a jury. See Graham, 230 F.3d at 39 (“Whether two
employees are similarly situated ordinarily presents a question of fact for the jury.”).
Defendant argues that, even if it was incorrect in determining that Plaintiff engaged in
more egregious conduct than Birmingham, that is insufficient to show discrimination. While
Defendant is correct that unfairness or employer error is not enough to demonstrate
discriminatory animus, “[t]o defeat summary judgment, [plaintiff] need only show that ‘the
evidence taken as a whole, supports a sufficient rational inference of discrimination.’” Herbert,
748 F. Supp. 2d at 241 (citations omitted)); see Desir v. City of New York, 453 F. App’x 30, 34
(2d Cir. 2011) (“In short, the question becomes whether the evidence, taken as a whole, supports
a sufficient rational inference of discrimination.” (quoting Weinstock, 224 F.3d at 42)). Plaintiff
has presented evidence that both he and Birmingham violated Defendant’s Sexual Harassment
Policy and filed sexual harassment complaints, and that Defendant conducted an investigation,
after which Birmingham suffered no disciplinary action, while Plaintiff was constructively
discharged. Reviewing the evidence in the light most favorable to Plaintiff, the Court finds that
Plaintiff has presented disputed issues of fact such that a reasonable jury could conclude that
Plaintiff was subjected to disparate disciplinary treatment by Defendant on the basis of his
gender. Defendant’s motion for summary judgment as to Plaintiff’s gender discrimination
claims is denied.
c.

Hostile Work Environment

Plaintiff has failed to sufficiently establish a hostile work environment claim. In order to
establish a hostile work environment claim, a plaintiff must produce evidence that the
complained of conduct “(1) is objectively severe or pervasive — that is, creates an environment
that a reasonable person would find hostile or abusive; (2) creates an environment that the
plaintiff subjectively perceives as hostile or abusive; and (3) creates such an environment
33

because of the plaintiff’s sex, or another protected characteristic.” Robinson v. Harvard Prot.
Servs., 495 F. App’x 140, 141 (2d Cir. 2012) (internal quotation marks omitted) (quoting Patane
v. Clark, 508 F.3d 106, 113 (2d Cir. 2007)).10 To withstand summary judgment, Plaintiff must
produce evidence that “the workplace was ‘so severely permeated with discriminatory
intimidation, ridicule, and insult, that the terms and conditions of [his] employment were thereby
altered.’” Mills, --- F. App’x at ---, 2013 WL 2157955, at *2 (quoting Desardouin v. City of
Rochester, 708 F.3d 102, 105 (2d Cir. 2013)). “Generally, unless an incident of harassment is
sufficiently severe, ‘incidents must be more than episodic; they must be sufficiently continuous
and concerted in order to be deemed pervasive.’” Das v. Consol. Sch. Dist. of New Britain, 369
F. App’x 186, 189–90 (2d Cir. 2010) (quoting Alfano v. Costello, 294 F. 3d 365, 374 (2d Cir.
2002)). The plaintiff must also establish that the hostile work environment can be imputed to the
employer in order to establish employer liability for hostile actions taken by its employees.11 See
Vance v. Ball State Univ., 570 U.S. ---, ---, 133 S. Ct. 2434, 2443 (2013) (explaining under what
circumstances an employer may be held liable for harassment by an employee); Summa, 708
F.3d at 124 (holding that “[i]n order to prevail on a hostile work environment claim,” a plaintiff

10

The same standards apply to the plaintiff’s hostile environment claim arising under the
NYSHRL. See Summa v. Hofstra Univ., 708 F.3d 115, 123–24 (2d Cir. 2013) (“Hostile work
environment claims under both [federal law] and the NYSHRL are governed by the same
standard.” (citing Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 609 (2d Cir. 2006))); Kelly
v. Howard I. Shapiro & Assocs. Consulting Eng’rs, P.C., 716 F.3d 10, 14 (2d Cir. 2013) (per
curiam) (“The standards for evaluating hostile work environment . . . claims are identical under
Title VII and the NYSHRL.”) Therefore, Plaintiff’s Title VII and NYSHRL hostile work
environment claims are analyzed together for purposes of this motion.
11

Where the harasser is a supervisor, an individual “empowered to take tangible
employment actions against the victim,” and “the supervisor’s harassment culminates in a
tangible employment action, the employer is strictly liable.” Vance v. Ball State Univ., 570
U.S. ---, ---, 133 S. Ct. 2434, 2439 (2013). However, where the harasser is a co-worker, “the
employer is liable only if it was negligent in controlling working conditions.” Id.

34

must demonstrate “that there is a specific basis for imputing the conduct creating the hostile
work environment to the employer” (quoting Duch v. Jakubek, 588 F.3d 757, 762 (2d Cir.
2009))); Smith v. HBO, No. 12-CV-2177, 2013 WL 2285185, at *2 (E.D.N.Y. May 22, 2013)
(“Plaintiff must also plead enough facts that the hostile work environment can be imputed to the
employer in order to establish employer liability for hostile actions taken by its employees.”).
“While the central statutory purpose[ of Title VII was] eradicating discrimination in
employment, Title VII does not set forth a general civility code for the American workplace.”
Redd, 678 F.3d at 176 (alteration in original) (citations and internal quotation marks omitted).
The Second Circuit distinguishes between “[complaints of] sexual assaults; [other] physical
contact[, whether amorous or hostile, for which there is no consent express or implied]; uninvited
sexual solicitations; intimidating words or acts; [and] obscene language or gestures” and “the
occasional vulgar banter, tinged with sexual innuendo, of coarse or boorish workers,” which are
not protected under the law. Redd, 678 F.3d at 177 (alteration in original) (citations omitted).
“Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work
environment — an environment that a reasonable person would find hostile or abusive — is
beyond Title VII’s purview.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21–22 (1993). “Isolated
incidents generally will not suffice to establish a hostile work environment unless they are
extraordinarily severe.” Kaytor v. Elec. Boat Corp., 609 F.3d 537, 547 (2d Cir. 2010). “In other
words, ‘[s]imple teasing, offhand comments, and isolated incidents (unless extremely serious)
will not amount to discriminatory changes in the terms and conditions of employment.’” Illiano
v. Mineola Union Free Sch. Dist., 585 F. Supp. 2d 341, 350 (E.D.N.Y. 2008) (quoting Faragher
v. City of Boca Raton, 524 U.S. 775, 788 (1998)).

35

Plaintiff has presented evidence that co-workers in the radiology department, specifically
Birmingham and Hawkins, spoke frequently about their sex lives and showed explicit
photographs in the workplace, creating an uncomfortable and inappropriate work environment.
However, Plaintiff has not established that the sexual conduct or the inappropriateness of the
environment was gender-based. See Smith, 2013 WL 2285185, at *4 (finding that where the
plaintiff alleged “that her female supervisor treated other females more favorably than [p]laintiff,
she ha[d] not sufficiently pled that any of her unfavorable treatment was due to her gender”);
Fattoruso v. Hilton Grand Vacations Co., 873 F. Supp. 2d 569, 578–79 (S.D.N.Y. 2012)
(dismissing complaint where there was “nothing that indicates that plaintiff was treated
‘unequally’ based upon his gender” and because the complaint “fail[ed] to allege specific acts to
support a claim that the work environment was hostile to men — ‘unfairness’ does not equate to
hostility, no matter how inequitable” (emphasis in original)); Dottolo v. Byrne Dairy, Inc.,
No. 08-CV-0390, 2010 WL 2560551, at *5 (N.D.N.Y. June 22, 2010) (dismissing the complaint
because the plaintiff had failed “to allege facts plausibly suggesting that [the defendant] posited
an unwelcome question to [the plaintiff] because of his sex”); Krasner v. HSH Nordbank AG,
680 F. Supp. 2d 502, 516 (S.D.N.Y. 2010) (dismissing the hostile work environment claim
“because none of the alleged acts of harassment committed directly against [the plaintiff] —
either when viewed in isolation or in conjunction with any potential discrimination against
women — support a claim that [he] is being harassed because he is a male employee” (internal
quotation marks omitted)).
Plaintiff asserts that he was uncomfortable during these inappropriate conversations, but
he admits that he engaged in some the sexual discussions and participated in some of the
inappropriate conduct. (Pl. Dep. 172:16–25.) He does not allege that the sexual comments were

36

directed to, or personally insulting to him in any way or to males in particular, nor does he
demonstrate that they were obviously intended to intimidate, ridicule, or demean him on account
of his gender or any other protected characteristic. See Wells-Williams v. Kingsboro Psychiatric
Center, No. 03-CV-134, 2007 WL 1011545, at *4 (EDNY March 30, 2007) (although plaintiff
asserts that she was uncomfortable and under “duress” during the offensive conversations, she
did not allege that the offenders’ comments were “personally insulting to her in any way, nor
[did] she demonstrate that they were obviously intended to intimidate, ridicule, or demean her on
account of a protected characteristic”). Plaintiff testified that Birmingham’s conduct was
directed at both men and women, and that “a lot of people” found her conduct offensive. (Pl.
Dep. 111:16–19, 121:16–21.) For example, Plaintiff has provided evidence that Susan Horn, a
female nurse, found Birmingham’s alleged actions made the work environment “uncomfortable.”
(Pl. Opp’n 21.) “Obscene language or gestures” and “the occasional vulgar banter, tinged with
sexual innuendo, of coarse or boorish workers” do not amount to a hostile work enivronment.
Redd, 678 F.3d at 177. Plaintiff’s contention that the radiology department was a sexuallycharged and inappropriate workplace for all employees, both male and female, is simply not
actionable. See Jerram v. Cornwall Cent. Sch. Dist., 464 F. App’x 13, 15 (2d Cir. 2012)
(affirming the district court’s grant of summary judgment to defendants on plaintiff’s hostile
work environment claim, where the evidence showed that “men and women alike” found the
offender abrasive and disrespectful, the offender subjected others to similar behavior, and “there
is little evidence that [the offender] treated women any worse than he treated men”); Smith, 2013
WL 2285185, at *4 (dismissing plaintiff’s hostile work environment claim because, among other
thing, plaintiff failed to “sufficiently [plead] that any of her unfavorable treatment was due to her
gender”); Krasner, 680 F. Supp. 2d at 519 (dismissing hostile work environment claims where

37

plaintiff failed to demonstrate that “he was singled out for mistreatment because of [his] sex”);
Wells-Williams, 2007 WL 1011545, at *4 (granting defendant summary judgment on sexual
harassment claim where “the work environment was equally unprofessional for both men and
women”). Defendant’s motion for summary judgment is granted as to Plaintiff’s hostile work
environment claims.
d.

Retaliation

Plaintiff claims that he was terminated in retaliation for filing a complaint against
Birmingham for sexual harassment. (Pl. Opp’n 23–24.) Claims of retaliation for engaging in
protected conduct under Title VII are examined under the McDonnell Douglas burden shifting
test.12 McDonnell Douglas Corp. v. Green, 411 U.S. 742, 802 (1973); see Summa, 708 F.3d at
12

Traditionally, “[t]he standards for evaluating . . . retaliation claims are identical under
Title VII and the NYSHRL.” Kelly, 716 F.3d at 14 (citing Weinstock v. Columbia Univ., 224
F.3d 33, 42 n. 1 (2d Cir. 2000)); Vandewater v. Canandaigua Nat. Bank, 893 N.Y.S.2d 916
(2010) (“It is well settled that the federal standards under [T]itle VII of the Civil Rights Act of
1964 are applied to determine whether recovery is warranted under the Human Rights Law.”
(citing Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 330 (2004))); Forrest, 3 N.Y.3d at
330 (stating that “[b]ecause both the Human Rights Law and [T]itle VII address the same type of
discrimination, afford victims similar forms of redress, are textually similar and ultimately
employ the same standards of recovery, federal case law in this area also proves helpful to the
resolution of this appeal” (quoting Matter of Aurecchione, 98 N.Y.2d 21, 26 (2002)). New York
State courts have yet to address the impact of the Supreme Court’s recent holding in Nassar on
the NYSHRL, nor has the Second Circuit provided the district courts of this Circuit with
guidance as to this issue. However, the relevant provisions of Title VII and NYSHRL are
textually similar, and both prohibit an employer from discriminating or retaliating against an
individual “because” he or she engaged in protected activity. In Nassar, the Supreme Court held
that under “the default rules” of statutory construction, “causation” should be interpreted as “butfor causation” “absent an indication to the contrary in the statute itself,” and interpreted Title
VII’s use of “because” as requiring “proof that the desire to retaliate was the but-for cause of the
challenged employment action.” Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. ---, ---, 133 S.
Ct. 2517, 2525, 2528 (2013). Since the NYSHRL statutory language is the same, and the New
York Court of Appeals has consistently stated that federal Title VII standards are applied in
interpreting the NYSHRL, this Court will continue to interpret the standard for retaliation under
NYSHRL consistent with Title VII jurisprudence, as clarified by the Supreme Court in Nassar.
See, e.g., Brown v. City of New York, No. 11-CV-2915, 2013 WL 3789091, at *19 (S.D.N.Y.
July 19, 2013) (reviewing the but-for causation requirement for Title VII retaliation articulated in

38

125 (“The burden-shifting framework laid out in McDonnell Douglas . . . governs retaliation
claims under . . . Title VII”). Under the test, “[f]irst, the plaintiff must establish a prima facie
case of retaliation. If the plaintiff succeeds, then a presumption of retaliation arises and the
employer must articulate a legitimate, non-retaliatory reason for the action that the plaintiff
alleges was retaliatory.” Fincher, 604 F.3d at 720 (citations omitted); see also Tepperwien v.
Entergy Nuclear Operations, Inc., 663 F.3d 556, 568 n.6 (2d Cir. 2011) (discussing the burden
shifting analysis in retaliation context); Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173
(2d Cir. 2005) (same). If the employer succeeds at the second stage, then the presumption of
retaliation dissipates, and the plaintiff must show that, but for the protected activity, he would not
have been terminated. See Nassar, 570 U.S. at ---, 133 S. Ct. at 2534 (holding that a plaintiff
“must establish that his or her protected activity was a but-for cause of the alleged adverse action
by the employer”); see also Moore v. Kingsbrook Jewish Med. Ctr., No. 11-CV-3625, 2013 WL
3968748, at *14 (E.D.N.Y. July 30, 2013) (stating that once the employer succeeds at the second
stage, “the presumption of retaliation dissipates, and the plaintiff must show that, but for the
protected activity, he would not have been terminated” (citing Nassar, 570 U.S. at ---, 133 S. Ct.
at 2534)); Brooks v. D.C. 9 Painters Union, No. 10-CV-7800, 2013 WL 3328044, at *4
(S.D.N.Y. July 2, 2013) (“If the defendant [articulates a legitimate, non-retaliatory reason], the
plaintiff must offer ‘proof that the unlawful retaliation would not have occurred in the absence of
the alleged wrongful action or actions of the employer.’” (quoting Nassar, 570 U.S. at ---, 133
S. Ct. at 2534)).

Nassar and stating that the plaintiff’s “retaliation claim under the NYSHRL is ‘analytically
identical to [her] claims brought under Title VII’” (citation omitted)).

39

i.

Prima Facie Case

In order to establish a prima facie case of retaliation, a plaintiff must establish
(1) participation in an activity protected by federal discrimination statute; (2) the defendant was
aware of this activity; (3) an adverse employment action; and (4) a causal connection between
the alleged adverse action and the protected activity. Kelly v. Howard I. Shapiro & Assocs.
Consulting Eng’rs, P.C., 716 F.3d 10, 14 (2d Cir. 2013) (per curiam) (citing Lore v. City of
Syracuse, 670 F.3d 127, 157 (2d Cir. 2012)); Summa, 708 F.3d at 125; Schiano v. Quality
Payroll Sys., Inc., 445 F.3d 597, 608 (2d Cir. 2006). The burden at the summary judgment stage
for Plaintiff is “‘minimal’ and ‘de minimis,’” and “the court’s role in evaluating a summary
judgment request is to determine only whether proffered admissible evidence would be sufficient
to permit a rational finder of fact to infer a retaliatory motive.” Jute, 420 F.3d at 173 (citations
omitted). Defendant argues that Plaintiff did not engage in “protected activity,” was not subject
to any adverse action and cannot establish the required “causal connection.” (Def. Mem. 15–18.)
1.

Protected Activity

Plaintiff alleges that he was fired for filing a sexual harassment complaint against
Birmingham on January 13, 2012. (Pl. Opp’n 23–24.) Under Title VII, protected activity
includes both “opposing discrimination proscribed by the statute and . . . participating in Title
VII proceedings.”13 Jute, 420 F.3d at 173; see also Tepperwien, 663 F.3d at 567 (“Title VII . . .
prohibits an employer from taking ‘materially adverse’ action against an employee because the
employee opposed conduct that Title VII forbids or the employee otherwise engaged in protected
activity.” (citations omitted)); Hicks v. Baines, 593 F.3d 159, 161 (2d Cir. 2010) (“Title VII’s
13

The New York State Human Rights Law contains similar language prohibiting
discrimination “against any person because he or she has opposed any practices forbidden under
this article or because he or she has filed a complaint, testified or assisted in any proceeding
under this article.” N.Y. Exec. Law § 296(1)(e).

40

anti-retaliation provision makes it unlawful ‘for an employer to discriminate against any . . .
employee[ ] . . . because [that employee] opposed any practice’ made unlawful by Title VII or
‘made a charge, testified, assisted, or participated in any manner in an investigation, proceeding,
or hearing under this subchapter.’” (alterations in original) (quoting 42 U.S.C. § 2000e-3(a))).
Title VII’s antiretaliation provision is “construed to cover a broad range of employer conduct.”
Thompson v. N. Am. Stainless, LP, 562 U.S. ---, ---, 131 S. Ct. 863, 868 (2011). It is not
necessary that the conduct was actually prohibited by Title VII, but only that the plaintiff had a
“good faith belief” that such conduct was prohibited. La Grande v. DeCrescente Distrib. Co.,
370 F. App’x. 206, 212 (2d Cir. 2010) (“It is well-established that a ‘plaintiff may prevail on a
claim for retaliation even when the underlying conduct complained of was not in fact unlawful
so long as he can establish that he possessed a good faith, reasonable belief that the underlying
challenged actions of the employer violated [the] law.’” (quoting Treglia v. Town of Manlius,
313 F.3d 713, 719 (2d Cir. 2002))); Kanhoye v. Altana Inc., 686 F. Supp. 2d 199, 206 (E.D.N.Y.
2009) (“‘An employee is privileged to report and protest workplace discrimination, whether that
discrimination be actual or reasonably perceived.’ Title VII therefore prohibits an employer
from retaliating against an employee for opposing the employer’s potentially discriminatory
practices.” (quoting Matima v. Celli, 228 F.3d 68, 78 (2d Cir. 2000))). When making the
complaint, Plaintiff must do so in “sufficiently specific terms so that the employer is put on
notice that the plaintiff believes he or she is being discriminated against on the basis of race,
gender, or national origin.” Brummell v. Webster Central School Dist., No. 06–CV–6437, 2009
WL 232789, at *6 (W.D.N.Y. Jan. 29, 2009).
Plaintiff filed a formal complaint of sexual harassment. (Def. 56.1 ¶ 156; Pl. 56.1 ¶ 156;
Robbins Aff. ¶ 24.) Defendant argues that Plaintiff cannot demonstrate that his complaint was

41

made reasonably and in good faith, as Plaintiff did not lodge a complaint of discrimination
against Birmingham until after learning of the complaint Birmingham filed against him. (Def
Reply 9.) Defendant maintains that the timing alone demonstrates that Plaintiff did not
reasonably believe he had been a victim of harassment, but rather that he filed the complaint in
retaliation and as a means of avoiding disciplinary actions for his own misconduct. (Id.)
Plaintiff’s sworn testimony is that he waited until January 13, 2010 to file a complaint against
Birmingham because he was afraid of retaliation and did not want to “cause problems,” but by
filing her complaint, Birmingham “made it fair to go out and complain.” (Pl. Dep. 142:20–
143:6; see also id. at 221:2–222:15.)14
A jury could conclude based on Plaintiff’s testimony that Plaintiff was offended by
Birmingham’s behavior and filed a good-faith sexual harassment complaint against her on that
basis. (Id.) See, e.g. Hicks, 593 F.3d at 170 (finding that plaintiffs’ sworn affidavits were
sufficient evidence to survive a summary judgment motion).
2.

Knowledge

Plaintiff has established that Defendant knew of his protected activity. “In order to
satisfy the requirement of employer knowledge, an employee must have made it clear that she
was opposing activity made illegal by Title VII.” Risco v. McHugh, No. 10-CV-6314, 2012 WL
2161115, at *20 (S.D.N.Y. June 14, 2012). It is not necessary that Plaintiff prove that the
specific actors knew of the protected activity as long as Plaintiff can demonstrate general
14

Defendant argues that Plaintiff admitted that he filed his sexual harassment complaint
in retaliation, pointing to a portion of Plaintiff’s deposition in which, when asked “You made a
complaint against her because she made a complaint against you?,” he answered “Yes.” (Pl.
Dep. 194:22–195:5.) However, in the same deposition, Plaintiff testified that he found
Birmingham’s conduct offensive prior to the filing of his complaint but did not feel free to file a
complaint until she “made it fair to go out and complain.” (Pl. Dep. at 142:20–143:6, 221:2–
222:15.)

42

corporate knowledge. See Henry v. Wyeth Pharmaceuticals, Inc., 616 F.3d 134, 148 (2d Cir.
2010) (“[A] jury may ‘find retaliation even if the agent denies direct knowledge of a plaintiff’s
protected activities, for example, so long as the jury finds that the circumstances evidence
knowledge of the protected activities or the jury concludes that an agent is acting explicitly or
implicit[ly] upon the orders of a superior who has the requisite knowledge.’” (alteration in
original) (quoting Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000))); Trivedi v.
N.Y. Unified Court Sys. Office of Court Admin., 818 F. Supp. 2d 712, 736 (S.D.N.Y. 2011) (“A
plaintiff need not prove that the specific actors within an organization were aware that the
plaintiff made allegations of retaliation to make out a prima facie retaliation claim; rather,
‘general corporate knowledge that the plaintiff has engaged in a protected activity’ is sufficient.”
(citations omitted)). Defendants admit that “[a]t or about January 13, 2010, Plaintiff filed a
complaint against Ms. Birmingham for sexual harassment.” (Def. 56.1 ¶ 125.) Although
Defendants believe that Plaintiff filed the complaint to retaliate against Birmingham, this is a
factual issue to be decided by the jury. Since Defendant knew Plaintiff filed a formal sexual
harassment complaint against Birmingham, Plaintiff has established that Defendant had
knowledge of his protected activity.
3.

Adverse Employment Action

Construing all the evidence and drawing all inferences in Plaintiff’s favor, Plaintiff also
satisfies the adverse employment action prong. As discussed above, Plaintiff has offered
sufficient evidence from which a reasonable jury could conclude that he was constructively
discharged. (See supra Part II.b.i.1.) Constructive discharge is considered an adverse
employment action sufficient to support a retaliation claim. See Civil Serv. Emps. Ass’n, Inc.,
Local 1000, AFSCME, AFL-CIO v. N.Y. Dep’t of Parks, Recreation & Historic Pres., 689 F.

43

Supp. 2d 267, 280 (N.D.N.Y. 2010) (holding that the “adverse employment action” element of
plaintiff’s retaliation claim “includes discharge from employment by constructive discharge”).
4.

Causation

Drawing all inferences in favor of Plaintiff, Plaintiff has established a causal connection
between his protected activity and his termination. “[A] plaintiff can indirectly establish a causal
connection to support a discrimination or retaliation claim by showing that the protected activity
was closely followed in time by the adverse employment action.”15 Gorzynski, 596 F.3d at 110–
11 (quoting Gorman-Bakos v. Cornell Coop. Extension of Schenectady Cnty., 252 F.3d 545, 554
(2d Cir. 2001)); see also Kim v. Columbia Univ., 460 F. App’x 23, 25 (2d Cir. 2012)
(“[T]emporal proximity between protected activity and adverse action may be sufficient to
satisfy the causality element of a prima facie retaliation claim . . . .”); Feingold, 366 F.3d at 156
(“[T]he requirement that [plaintiff] show a causal connection between his complaints and his
termination is satisfied by the temporal proximity between the two.”). There is no bright line
rule for how long after a plaintiff has engaged in the protected activity that the adverse action
must have occurred to benefit from the inference but generally courts measure the time in
months. See, e.g. Gorzynski, 596 F.3d at 110–11 (“Though [the Second Circuit] has not drawn a
bright line defining, for the purposes of a prima facie case, the outer limits beyond which a
15

The Supreme Court has recently ruled that under Title VII, a plaintiff “must establish
that his or her protected activity was a but-for cause of the alleged adverse action by the
employer.” Nassar, 570 U.S. at ---, 133 S.Ct. at 2534. While temporal proximity alone may still
be sufficient at the prima facie stage, it is not sufficient at the pretext stage. Compare Rivera v.
N.Y.C. Dep’t of Correction, No. 06-CV-862, 2013 WL 3297597, at *4 (E.D.N.Y. June 28, 2013)
(incorporating the “but-for” causation standard into the prima facie case); with Moore v.
Kingsbrook Jewish Med. Ctr., No. 11-CV-3625, 2013 WL 3968748, at *14 (E.D.N.Y. July 30,
2013) (analyzing the “but-for” causation standard at the pretext stage); Brooks v. D.C. 9 Painters
Union, No. 10-CV-7800, 2013 WL 3328044, at *4 (S.D.N.Y. July 2, 2013) (stating that “but for”
causation must be proved if the defendant articulates a legitimate, non-retaliatory reason for the
adverse employment action).

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temporal relationship is too attenuated to establish causation, [it has] previously held that five
months is not too long to find the causal relationship.”); Smith v. Town of Hempstead Dept. of
Sanitation Sanitary Dist. No. 2, 798 F. Supp. 2d 443, 457 (E.D.N.Y. 2011) (“With regard to the
establishment of a prima facie case through temporal proximity, the Second Circuit has not
drawn a bright line as to how closely an adverse employment action must follow protected
activity to imply that retaliation has taken place.” (citing Espinal v. Goord, 558 F.3d 119, 129
(2d Cir. 2009)); Laudadio v. Johanns, 677 F. Supp. 2d 590, 614 (E.D.N.Y. 2010) (“There is no
bright-line beyond which a temporal relationship is too attenuated to prove causation.” (citations
omitted)). Here, Plaintiff was arguably constructively discharged two days after filing his sexual
harassment complaint against Birmingham, thereby satisfying the temporal proximity
requirement.
ii.

Non-Discriminatory Explanation

Since Plaintiff has established a prima facie case of retaliation, a presumption of
retaliation arises and Defendant must articulate a legitimate reason for Plaintiff’s termination.
Fincher, 604 F.3d at 720. Defendant argues that Plaintiff was not terminated, but was facing yetto-be-determined discipline for his violation of the company’s sexual harassment policies. (Def.
Mem. at 19–20.) Therefore, Defendant satisfies its burden.
iii. Pretext
Although Plaintiff has established a prima facie case of retaliation, Plaintiff cannot prove
that but for his sexual harassment complaint, he would not have been terminated. Under the
recent Supreme Court decision in Nassar, “Title VII retaliation claims must be proved according
to traditional principles of but-for causation . . . . This requires proof that the unlawful retaliation
would not have occurred in the absence of the alleged wrongful action or actions of the
employer.” 570 U.S. at ---, 133 S. Ct. at 2533. Therefore, during the final stage of the burden
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shifting framework, the plaintiff must show that retaliation was a but-for cause of the adverse
employment action. See Moore, 2013 WL 3968748, at *14 (E.D.N.Y. July 30, 2013) (holding
that after Nassar, “the plaintiff must show that retaliation was a but-for cause of the adverse
employment action” during the final stage of the burden shifting framework); Brooks, 2013 WL
3328044, at *4 (S.D.N.Y. July 2, 2013) (stating that “but for” causation must be proved if the
defendant articulates a legitimate, non-retaliatory reason for the adverse employment action).
Plaintiff has not and cannot do so.
Although Plaintiff’s termination occurred two days after he filed his sexual harassment
complaint, that alone cannot sustain his retaliation claim. Even under the previous lesser
“motivating factor” standard, “temporal proximity — while enough to support a prima facie case
— [was] insufficient to establish pretext.” Ben-Levy v. Bloomberg, L.P., --- F. App’x ---, ---,
2013 WL 1810953, at *2 (2d Cir. May 1, 2013); see also Govori v. Goat Fifty, L.L.C., --- F.
App’x ---, ---, 2013 WL 1197770, at *2 (2d Cir. Mar. 26, 2013) (summary order) (“[W]hile
temporal proximity between events may give rise to a prima facie case of discrimination, ‘such
temporal proximity is insufficient to satisfy [plaintiff’s] burden to bring forward some evidence
of pretext.’” (quoting El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir. 2010))).
In order to establish but-for causation, Plaintiff would have to prove that his termination
would not have occurred in the absence of a retaliatory motive. Defendant has established that it
perceived Plaintiff as having violated its Sexual Harassment Policy, and intimidating Union
members into filing statements in support of his complaint. (Def. 56.1 ¶¶ 150–53, 174.) The
terms of Defendant’s Sexual Harassment Policy are clear — any violation may result in
disciplinary actions, including discharge. (Def. 56.1 ¶ 15.) Defendant has also demonstrated
that Plaintiff was facing discipline in response to his own conduct, not his sexual harassment

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complaint. (Def. 56.1 ¶ 184.) Taking the evidence in the light most favorable to Plaintiff, a
reasonable jury could conclude that Plaintiff’s termination was discriminatory, since Defendant
applied its Sexual Harassment Policy to Plaintiff differently than Birmingham. However, based
on the evidence in the record, a reasonable jury could not conclude that had Plaintiff not filed a
sexual harassment complaint against Birmingham, he would not have been terminated after
Defendant’s investigation into Birmingham’s complaint of sexual harassment against Plaintiff.
Defendant’s motion for summary judgment as to Plaintiff’s retaliation claims is granted.
III. Conclusion
For the foregoing reasons, Defendant’s motion for summary judgment is denied as to
Plaintiff’s gender discrimination claims and granted as to Plaintiff’s hostile work environment
and retaliation claims.

SO ORDERED:

s/ MKB
MARGO K. BRODIE
United States District Judge
Dated: August 14, 2013
Brooklyn, New York

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