Puglisi, Jr. v. Town of Hempstead Sanitary District No. 2 et al

Filing 60

ORDER denying 56 Motion for Reconsideration filed by Donald Zinn, Robert Noble, Harold Verity, Frank Espositto, Town of Hempstead Sanitary District No. 2, Michael McDermott: For the reasons set forth in the attached order, Defendants' motion for reconsideration is denied. Ordered by Judge Pamela K. Chen on 11/15/2013. (Doerr, Mark)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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JOHN PUGLISI, JR.,
Plaintiff,
MEMORANDUM & ORDER
11-CV-0445 (PKC)

v.
TOWN OF HEMPSTEAD SANITARY
DISTRICT NUMBER 2, ROBERT NOBLE,
MICHAEL McDERMOTT, DONALD ZINN,
FRANK ESPOSITTO, and HAROLD VERITY,
Defendants.
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PAMELA K. CHEN, United States District Judge:

Before the Court is Defendants’ motion to reconsider Judge Joseph Bianco’s order of
January 8, 2013, denying Defendants’ motion for summary judgment. (Dkts. 28, 30.) 1 Judge
Bianco denied the motion in its entirety except for Plaintiff’s claim under New York State Labor
Law Section 215, which Judge Bianco dismissed.
The Court granted Defendants’ reconsideration request on the basis of the intervening
change in the controlling law of retaliation claims under Title VII, as recently set forth by the
United States Supreme Court in University of Texas Southwestern Medical Center v. Nassar, 133
S. Ct. 2517 (June 24, 2013). Accordingly, the Court only reconsiders Judge Bianco’s order to
the extent that Nassar impacts Plaintiff’s retaliation claim under Title VII and New York

1

This matter previously was assigned to Judge Bianco prior to its transfer to this Court on May
9, 2013.

Executive Law § 296, which are analyzed under the same standard. 2

Pacheco v. N.Y.

Presbyterian Hosp., 593 F. Supp. 2d 599 n.17 (S.D.N.Y. 2009) (citing Middleton, 545 F. Supp.
2d 369, 373 (S.D.N.Y. 2008) (“The analysis of a retaliation claim under [the New York State
Human Rights Law] . . . is identical to that under Title VII”); cf. Gorzynski v. Jet Blue Airways
Corp., 596 F.3d 93, 105–06 n.6 (2d Cir. 2010) (“The law governing [Age Discrimination
Employment Act] claims has been held to be identical to that governing claims made under the
[New York Human Rights Law].”)

The Court does not herein reconsider plaintiff’s First

Amendment claim.
BACKGROUND
The Court assumes the parties’ familiarity with the underlying facts, which have been set
forth in the parties’ pleadings and submissions in connection with the motion for summary
judgment, and which were summarized in relevant part by Judge Bianco in his January 8 order.
(Dkts. 1, 5, 18, 20, 23–25, 30.) Additionally, the basis of the present motion for reconsideration
is an intervening change in law, and neither party disputes any of Judge Bianco’s factual findings
nor sets forth any basis to reconsider them. The Court, therefore, accepts the factual findings of
Judge Bianco’s January 8 order. See Local Rule 6.3; Dkt. 30.
Briefly, Plaintiff is a white male who has been employed by Defendant Town of
Hempstead Sanitation District Number 2 (“District”) as a sanitation worker since approximately
1995. (Dkt. 18-1 ¶ 8; Dkt. 20-1 ¶ 1.) Plaintiff’s father, John Puglisi, Sr., also is employed at the
District, as a supervisor. (Dkt. 20-1 ¶ 6.) In 2007, a “hangman’s noose” was discovered in one
of the District’s garages, in a place where employees gather in the morning at the beginning of
2

The parties dispute whether the newly announced Nassar standard applies to state law claims.
(See Dkt. 57 at 5–6; Dkt. 3–4.) The Court need not resolve that question at this time, however,
because the Court finds that Plaintiff’s federal and state law claims survive summary judgment
even were the Court to apply the Nassar but-for standard to all of them.
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the work day. (Dkt. 18-1 ¶ 15.) District employees alerted the District regarding the noose, and
the District initiated an investigation. As a result of the incident, several District employees filed
employment discrimination complaints with the New York State Division of Human Rights
(“DHR”). (Dkt. 18-1 ¶ 19.) As part of its investigation, DHR interviewed Plaintiff’s father, who
participated in the investigation and told investigators that he believed the District had
discriminated against one of the complainants in connection with the filing of a complaint with
the DHR. (Dkt. 18-1 ¶¶ 25–29.) Plaintiff avers that, since his father’s participation in the
investigation, Plaintiff has been retaliated against for his father’s statements concerning the
District’s alleged discrimination. (Dkt. 18-1 ¶¶ 30-144.)
Plaintiff initiated this action on January 28, 2011, alleging employment discrimination
and retaliation under Title VII, civil rights violations under 42 U.S.C. § 1983 and the First and
Fourteenth Amendments, conspiracy, and various state law claims. (Dkt. 1.) The District and
individual defendants moved for summary judgment on June 15, 2012. (Dkt. 18.) On January 8,
2013, Judge Bianco issued his decision in a teleconference with the parties, granting in part and
denying in part Defendants’ motion. (Dkts. 28, 30.)
DISCUSSION
I.

Motion to Reconsider
“The major grounds justifying reconsideration are ‘an intervening change of controlling

law, the availability of new evidence, or the need to correct a clear error or prevent manifest
injustice.’” Virgin Atl. Airways, Ltd. v. Nat’l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992)
(quoting 18 Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and
Procedure § 4478 at 790 (1981)).

Although the standard for granting a motion for

reconsideration is “strict, and reconsideration will generally be denied,” Herschaft v. N.Y. City

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Campaign Fin. Bd., 139 F. Supp. 2d 282, 283 (E.D.N.Y. 2001), the Court finds good cause to
reconsider Judge Bianco’s order denying Defendants’ motion for summary judgment given the
Supreme Court’s subsequent decision in Nassar.

Defendants adequately have set forth a

sufficient basis for reconsideration, i.e., an intervening change in controlling law. Although
Plaintiff half-heartedly maintains that Nassar should not apply because it was decided several
months after Judge Bianco’s order on summary judgment, Plaintiff sets forth no legal basis for
why Nassar is not legally controlling as to Plaintiff’s retaliation claim. The Court, therefore,
applies Nassar upon reconsideration of Defendants’ summary judgment motion. (Dkt. 57 at 3–
5.)
II.

Summary Judgment Standard
The standard for summary judgment in the Second Circuit is well-established. Summary

judgment may be granted only if the submissions of the parties taken together “show that there is
no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. Proc. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–252
(1986). “The moving party bears the burden of establishing the absence of any genuine issue of
material fact,” Zalaski v. City of Bridgeport Police Dep't, 613 F.3d 336, 340 (2d Cir. 2010); see
Salahuddin v. Goord, 467 F.3d 263, 272–73 (2d Cir. 2006), after which the burden shifts to the
nonmoving party to “come forward with specific evidence demonstrating the existence of a
genuine dispute of material fact.” Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011);
see also F.D.I.C. v. Great American Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010). A dispute of
fact is “genuine” if “the [record] evidence is such that a reasonable jury could return a verdict for
the nonmoving party.” Anderson, 477 U.S. at 248.

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The nonmoving party can only defeat summary judgment “by coming forward with
evidence that would be sufficient, if all reasonable inferences were drawn in [its] favor, to
establish the existence of” a factual question that must be resolved at trial. Spinelli v. City of
New York, 579 F.3d 160, 166 (2d Cir. 2009) (internal quotations and citations omitted); see also
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “The mere existence of a scintilla of
evidence in support of the [non-movant’s] position will be insufficient; there must be evidence
on which the jury could reasonably find for the [non-movant].” Hayut v. State Univ. of N.Y., 352
F.3d 733, 743 (2d Cir. 2003) (alterations in original); see also Lyons v. Lancer Ins. Co., 681 F.3d
50, 56–57 (2d Cir. 2012); Jeffreys v. City of N.Y., 426 F.3d 549, 554 (2d Cir. 2005). The
nonmoving party cannot avoid summary judgment simply by relying “on conclusory allegations
or unsubstantiated speculation,” Jeffreys, 426 F.3d at 554 (quotations and citations omitted); see
also DeFabio v. East Hampton Union Free Sch. Dist., 623 F.3d 71, 81 (2d Cir. 2010); and must
offer “some hard evidence showing that its version of the events is not wholly fanciful.” Miner
v. Clinton Cnty., New York, 541 F.3d 464, 471 (2d Cir. 2008). In determining whether a genuine
issue of fact exists, the court must resolve all ambiguities and draw all reasonable inferences
against the moving party. Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290,
309 (2d Cir. 2008).
The Second Circuit has provided additional guidance with respect to motions for
summary judgment in employment discrimination cases:
We have sometimes noted that an extra measure of caution is merited in affirming
summary judgment in a discrimination action because direct evidence of
discriminatory intent is rare and such intent often must be inferred from
circumstantial evidence found in affidavits and depositions. See, e.g., Gallo v.
Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994). Nonetheless,
“summary judgment remains available for the dismissal of discrimination claims
in cases lacking genuine issues of material fact,” McLee v. Chrysler Corp., 109
F.3d 130, 135 (2d Cir. 1997), and “may be appropriate even in the fact-intensive
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context of discrimination cases.” Abdu–Brisson v. Delta Air Lines, Inc., 239 F.3d
456, 466 (2d Cir. 2001) (“It is now beyond cavil that summary judgment may be
appropriate even in the fact-intensive context of discrimination cases.”).
Schiano v. Quality Payroll Sys., 445 F.3d 597, 603 (2d Cir. 2006) (quoting Holtz v. Rockefeller
& Co., 258 F.3d 62, 69 (2d Cir. 2001)). “However, even in the discrimination context, a plaintiff
must provide more than conclusory allegations of discrimination to defeat a motion for summary
judgment.” Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997). “When no rational
jury could find in favor of the nonmoving party because the evidence to support its case is so
slight, there is no genuine issue of material fact and a grant of summary judgment is proper.”
Gallo v. Prudential Residential Servs., Ltd. P'Ship, 22 F.3d 1219, 1224 (2d Cir. 1994).
III.

Title VII Claims
Title VII retaliation claims are analyzed under the familiar McDonnell Douglas burden-

shifting framework. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–03 (1973); Summa
v. Hofstra Univ., 708 F.3d 115, 125 (2d Cir. 2013) (“The burden-shifting framework laid out in
McDonnell Douglas . . . governs retaliation claims under both Title VII and the NYSHRL.”).
Under the test, a plaintiff first must establish a prima facie case of retaliation. If the plaintiff
succeeds, a presumption of discrimination is established and the burden of production shifts to
the defendant to articulate a legitimate, non-retaliatory reason for the adverse employment action
that the plaintiff claims was retaliatory. See, e.g., Fincher v. Depository Trust and Clearing
Corp., 604 F.3d 712, 720 (2d Cir. 2010) (citations omitted). Where the defendant articulates
such a reason, the presumption dissipates, and the burden shifts back to the plaintiff, who must
demonstrate that the defendant’s purported reason is a pretext, and that the employer’s retaliatory
intent was the “but-for” cause of the adverse employment action. Nassar, 133 S. Ct. at 2534. In
other words, the plaintiff must show that “the unlawful retaliation would not have occurred in the

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absence of the alleged wrongful action or actions of the employer.” Id. at 2532; see also Brooks
v. D.C. 9 Painters Union, 10-CV-7800, 2013 WL 3328044, at * 4 (S.D.N.Y. July 2, 2103) (once
defendant articulates a legitimate, non-retaliatory reason for the adverse employment action,
“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, 133 S. Ct. at
2532). 3
IV.

Judge Bianco’s Opinion
In a January 8, 2013 teleconference, Judge Bianco set forth his bases for denying

Defendants’ motion for summary judgment with respect to Plaintiff’s retaliation claims. (Dkt.
30.)
a. Adverse Employment Action
First, Judge Bianco rejected Defendants’ argument that the course of conduct experienced
by Plaintiff did not constitute an adverse employment action or actions. (Dkt. 30 at 4–8.) Judge
Bianco listed numerous examples of alleged mistreatment and work assignments which he found
could permit a rational jury to find that they constituted an adverse employment action,
including, among others: assignments requiring Plaintiff to collect large amounts of debris from
various locations in excess of the limits set forth by ordinance; assignments requiring him to
collect chemicals; non-payment of his medical bills; denial of a personal day to take his pregnant
wife for a doctor’s visit; and the receipt of an unsigned paycheck. (Dkt. 30 at 5–6.) In finding
that this pattern could amount to an adverse employment action, Judge Bianco cited Second
Circuit authority stating that “[c]ontext matters[,] as some actions may take on more or less
significance depending on the context and alleged acts of retaliation must be evaluated both
3

Prior to Nassar, a plaintiff only had to establish that retaliation was “a motivating factor” for
the adverse employment action. See Nassar, 133 S. Ct. at 2526–27 (emphasis added).
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separately and in the aggregate, as even trivial acts may take on greater significant when they are
viewed as part of a larger course of conduct.” (Dkt. 30 at 7) (citing Rivera v. Rochester Genesee
Reg’l Transp. Auth., 702 F.3d 685, 689 (2d Cir. 2012) (internal citations and quotations
omitted)).
b. Causal Connection
Judge Bianco next addressed Defendants’ contentions that summary judgment was
warranted because there was insufficient proof of a causal connection between Plaintiff’s father’s
participation in the discrimination investigation and any adverse employment action. (Dkt. 30 at
8–10.) Judge Bianco found that there was adequate temporal proximity between Plaintiff’s
father’s advocacy and the alleged adverse employment actions, especially given the pattern of
alleged adverse employment actions over a substantial time period. (Dkt. 30 at 9.) He also
found that Plaintiff’s testimony that, in over a decade of employment, he had never been given
the types of assignments he began receiving after his father’s statements to the DHR supported
an inference of retaliation. (Dkt. 30 at 9–10.)
c. Knowledge
Judge Bianco also addressed Defendants’ contention that Plaintiff’s supervisors had no
knowledge of the protected activity in which Plaintiff’s father engaged and, therefore, that there
could be no connection between his Plaintiff’s father’s advocacy and any adverse action. (Dkt.
30 at 10.) Judge Bianco found that there was sufficient evidence to create a genuine issue of fact
as to the supervisors’ knowledge of Puglisi Sr.’s participation in the discrimination investigation.
(Dkt. 30 at 11.) Judge Bianco also found that an employer’s or supervisor’s knowledge, and
therefore retaliation, “can be established through the decision maker’s influence of lower-level

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supervisors,” which ultimately could moot the issue of whether Plaintiff’s direct supervisors had
knowledge of his father’s protected activities. Id.
V.

Analysis
That leaves the Court to decide whether those facts addressed by Judge Bianco and set

forth by the parties in the motion for summary judgment briefing, viewed in the light most
favorable to Plaintiff, would permit a finder of fact to conclude that Plaintiff’s protected
activities were a “but-for” cause of the adverse employment actions he suffered. The Court
concludes that they do.
As Judge Bianco implicitly found, Plaintiff met his “de minimis” burden and successfully
established a prima facie case of retaliation, which gave rise to a rebuttable presumption of
retaliation. (See Dkt. 30.) Judge Bianco then found that Defendant had adequately articulated
legitimate, non-retaliatory reasons for the allegedly adverse employment actions suffered by
Plaintiff. (Dkt. 30 at 11–12). Namely, Defendants asserted that the actions were not adverse
employment actions because they were within the responsibilities of a sanitation worker and that
his complaints were investigated. (Dkt. 30 at 11.) Judge Bianco then addressed Plaintiff’s
evidence and Defendants’ purported non-retaliatory reasons under the “pretext” prong of
McDonnell Douglas, and concluded that “there is sufficient evidence based upon the temporal
proximity, the evidence of being singled out with respect to many of these assignments, that
there’s an issue of fact as to whether those reasons are a pretext for retaliation. So for those
reasons, the retaliation claim survives the motion for summary judgment.” (Dkt. 30 at 11–12.)
The Court agrees with those findings. However, Judge Bianco, deciding the matter prior to the
Supreme Court’s Nassar decision, necessarily analyzed the motion under the then-controlling
“motivating factor” standard, see Summa, 708 F.3d at 129, which was implicitly overruled by

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Nassar. It is this phase of the analysis wherein the Court reconsiders Judge Bianco’s conclusions
in accordance with Nassar.
a. Application
The Supreme Court in Nassar held that Title VII retaliation claims must be proven
according to traditional “but-for” causation principles, not the more relaxed “motivating factor”
standard that was applied in the Second Circuit prior to Nassar. See Nassar, 133 S. Ct. at 2525–
26, 2534. Here, in order to prove but-for causation, Plaintiff would have to prove at trial that the
adverse employment actions suffered would not have occurred in the absence of a retaliatory
motive. Id. at 2532.
Based on the evidence in the record, a reasonable jury could conclude that Defendants’
stated reasons for the adverse employment actions taken against Plaintiff were pretextual and
that these actions were motivated solely by Defendants’ intent to retaliate against Plaintiff for his
father’s advocacy and participation in the DHR discrimination investigation.
As a general matter, mere temporal proximity of the alleged adverse employment action
to the triggering event is insufficient, on its own, to raise a triable issue of fact to withstand
summary judgment. See, e.g., Govori v. Goat Fifty, L.L.C., 519 Fed. App’x 732, 734 (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)); El Sayed, 627 F.3d at 933 (“a plaintiff must come forward
with some evidence of pretext in order to raise a triable issue of fact.”); El Sayed, 627 F.3d at
933 (“In this case, Appellant produced no evidence other than temporal proximity in support of
his charge that the proffered reason for his discharge was pretextual.”); Ben-Levy v. Bloomberg,

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L.P., 518 Fed. App’x 17, 28 (2d Cir. May 1, 2013) (summary order) (“While Ben-Levy
demonstrates that his February 2010 internal complaint of discrimination and retaliation was
followed by his removal as project manager on an important project by just two days, this
temporal proximity—while enough to support a prima facie case—is insufficient to establish
pretext.”).
Here, however, Plaintiff has presented more than mere temporal proximity; he has also
offered evidence demonstrating disparate treatment. Defendants argue, however, that even this
combination of temporal proximity and disparate treatment is insufficient for a jury to find “butfor” causation for the alleged retaliation. The Court disagrees.
In addition to the undisputed temporal nexus between Plaintiff’s father’s participation in
the investigation and the beginning of the allegedly adverse employment actions against him
(Dkt. 30 at 8–9), Plaintiff also has offered evidence demonstrating that he was subjected to a
series of employment actions that were, at least, inconvenient and annoying, and, at worst,
potentially dangerous.

Plaintiff also has offered evidence that he had not previously been

subjected to these actions prior to his father’s participation in the investigation. Even though
Defendants argue that these actions cannot constitute adverse employment actions because they
were part of his job, the Court agrees with Judge Bianco’s finding that “if [plaintiff is] able to
prove that this increased work load or these assignments were specifically targeted at him . . . in
retaliation for the complaints of discrimination, then the fact that it is his job does not mean that
it cannot qualify as retaliation. If his work load was increased unfairly or disproportionately to
the other workers, that could certainly qualify as an adverse action under the standard.” (Dkt. 30
at 8.) Furthermore, the extensiveness of the pattern of adverse actions also gives support to a
finding of but-for retaliation. (See Dkt. 30 at 9) (“some of the acts were in close proximity and

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there was a pattern of alleged acts over time”). This pattern goes beyond the single incidents
alleged by the plaintiffs in the cases supra at 10–11, in which but-for causation was not found.
See Govori, 519 Fed. App’x at 734; El Sayed, 627 F.3d at 933; Ben-Levy, 518 Fed. App’x at 28.
In sum, Defendants have failed to establish that there is no genuine issue of fact as to
whether retaliatory animus was the but-for cause of the alleged adverse employment actions
suffered by Plaintiff and that therefore they are entitled to summary judgment as a matter of law.
CONCLUSION
For the reasons set forth above, the Court finds that Plaintiff has raised a genuine issue of
triable fact with respect to all elements of Plaintiff’s claims and, more specifically, that a
reasonable jury could conclude, required by Nassar, that Plaintiff’s father’s participation in the
DHR’s investigation was the but-for cause of any adverse employment actions taken against
Plaintiff. Therefore, there is no basis to overturn Judge Bianco’s January 8 order denying
Defendants’ motion for summary judgment. Accordingly, Defendants’ motion to reconsider is
denied.
SO ORDERED:

/s/ Pamela K. Chen
PAMELA K. CHEN
United States District Judge
Dated: November 15, 2013
Brooklyn, New York

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