Edwards v. Jericho Union Free School District et al

Filing 50

ORDER granting 38 Motion for Summary Judgment. For the reasons set forth in the attached Memorandum and Order, defendants' motion for summary judgment is granted, and plaintiff's claims are dismissed in their entirety. The clerk of the Court is directed to close this case. Ordered by Judge Denis R. Hurley on 10/29/2014. (Kaley, Regina)

UNITED STATES DISTRICT
COURT EASTERN DISTRICT OF
NEW YORK
----------------------------------------------------LISA EDWARDS,
Plaintiff,
MEMORANDUM AND ORDER
11-CV-3261(DRH)(SIL)

-againstJERICHO UNION FREE SCHOOL
DISTRICT, JERICHO UNION FREE
SCHOOL DISTRICT BOARD OF
EDUCATION, HENRY L. GRISHMAN, in his
official capacity as Superintendent and
individually, BENJAMIN CIUFFO, in his
official capacity as Assistant Superintendent
and individually, BARBARA BAUER, in her
official capacity as Assistant Superintendent
and individually, JOSEPH PRISINZANO, in
his official capacity as Principal and
individually, ANTONY SINANIS, in his
official capacity as Principal and individually,
Defendants.
---------------------------------------------------------X
APPEARANCES:
For the Plaintiff:
DANDENEAU & LOTT
425 Broad Hollow Road, Suite 418
Melville, NY 11747
By: Dawn A Lott, Esq.
Gerald V. Dandeneau, Esq.
For the Defendants:
INGERMAN SMITH, LLP
150 Motor Parkway, Suite 400
Hauppauge, NY 11788
By: Christopher M. Powers, Esq.
David Ferdinand Kwee, Esq.
HURLEY, Senior District Judge:

Plaintiff Lisa Edwards (“Edwards” or “plaintiff”) commenced this action against
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defendants Jericho Union Free School District (the “District”), Jericho Union Free
School District Board of Education (the “Board”), Henry Grishman (“Grishman”),
Benjamin Ciuffo (“Ciuffo”), Barbara Bauer (“Bauer”), Joseph Prisinzano
(“Prisinzano”), and Antony Sinanis (“Sinanis”) (collectively “defendants”) asserting
claims of race-based discrimination, a hostile work environment, and retaliatory employment
practices in violation of 42 U.S.C. § 2000(e) (“Title VII”), 42 U.S.C. § 1981, 42 U.S.C. §
1983, New York State Human Rights Law (“NYSHRL”), Executive Law § 296, and state claims
of intentional and negligent infliction of emotional distress. Presently before the Court is
defendants’ motion for summary judgment pursuant to Federal Rule of Civil Procedure 56
(“Rule 56”) seeking dismissal of all of plaintiff’s claims. For the reasons set forth below, the
defendants’ motion is granted.
BACKGROUND
The following facts, drawn from the parties’ Local Rule 56.1 statements and the
parties’ submissions are undisputed unless otherwise noted.
Plaintiff’s Employment at the District
Plaintiff is an African-American woman. Plaintiff began her employment at the
District as a part-time Middle School one-on-one reading teacher and a per diem substitute
teacher and Learning Center Tutor. Plaintiff began working as a probationary Reading
Teacher and ELA Support Teacher at Jericho High School (“the High School”) in September
of 2006. Plaintiff’s responsibilities included providing reading instruction to students with
disabilities and providing students with additional support services to help them with the ELA
curriculum. It is undisputed that plaintiff was appointed for a probationary period of three
years and that generally the Superintendent of Schools, who at all times relevant to this case
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was Grishman, makes a recommendation to the Board to grant tenure to a probationary teacher.
Generally, such a recommendation is made after consulting with administrators such as
assistant superintendents, curriculum associates, and building principals.
During the time that plaintiff was employed, the District had a practice of conducting at
least four observations per year of all probationary teachers as well as one mid-year evaluation
and one end-of-year evaluation of each probationary teacher. As part of this practice, those
conducting the observations created written reports, and the teacher and the observer
participated in meetings to discuss the observation. In addition, principals and curriculum
associates performed informal observations by way of a “walk-through” whereby the
administrator would come in the teacher’s room and observe a segment of a lesson.
Throughout plaintiff’s three year probationary period, she received various criticisms
and recommendations. For example, Prisinzano, the principal at the High School testified that
upon review of plaintiff’s 2006-07 mid-year evaluation, he had “a very serious concern” about
plaintiff’s “alignment of activities and skill attainment.” (Prisinzano Dep. at 55-56.)
Moreover, plaintiff’s January 2009 evaluation contains various suggestions regarding
plaintiff’s performance as an ELA teacher including a statement that “[a]dditional work
planning for differentiation will need to be accomplished for this setting to be more
successful.” The evaluation also states that “flexible grouping is a must to better meet the
varied functioning levels in these classes.” (Ex. N.) Similarly, plaintiff’s June 2009 evaluation
states, inter alia, that plaintiff’s “needed area of growth . . . would be to provide opportunities
for students to engage in active reading and writing” and again reiterates the need for
“[f]lexible grouping.” (Ex. O.)
On or about March of 2009, Ciuffo, the Assistant Superintendent of Personnel and
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Education Operations, advised plaintiff that there was a possibility that she would not receive
tenure. At or around this time plaintiff also met with Bauer, the Assistant Superintendent of
Curriculum and Instruction. Subsequently, plaintiff requested a meeting with various
administrators including Ciuffo and a union representative that took place in March of 2009.
At this meeting, plaintiff informed those present that she was being treated differently than
other teachers and that she “kn[ew] what this [was] about,” but she did not mention race. (Pl.’s
Dep. at 358.) At some point during the meeting, plaintiff was advised that the District agreed
to extend her probationary period another year and plaintiff agreed to accept this offer. In
March of 2009, administrators provided plaintiff with a written plan with instructional goals
that would assist her in focusing on the areas she needed to improve upon.
Plaintiff claims that while at the High School Prinsinzano covertly expressed racial bias
toward her through his evaluations, daily communications, and conferences. Moreover, she
claims that Prisinzano was “getting more aggressive in terms of being critical” during the
2007-08 year. Plaintiff, however, admits that she never made a formal complaint about
discrimination to anyone involved with the District’s administration.
Plaintiff’s Employment at Contiague Elementary
In or about May of 2009, plaintiff was advised that she would be transferred to the
District’s Elementary school for her fourth probationary year, the 2009-10 school year. The
District claims that it had a legitimate nondiscriminatory reason for transferring plaintiff
because there was a reading position open at Contiague, and there was not an immediate need
for a full-time reading teacher at the High School. Plaintiff, however, claims that there was a
need for a reading teacher at the High School as evidenced by the fact that upon her departure,
the District hired Robyn Stern, a white Caucasion female, to replace her. Defendants admit
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that in August of 2009, after more accurately assessing the High School’s needs, the District
did advertise for a part-time reading teacher at the High School and that they ultimately hired
Robyn Stern.
Sinanis, the principal at Contiague, typically performed “announced” observations of
teachers, meaning that he would inform the teacher ahead of time when he was going to be
conducting an observation. Sinanis testified that he “had concerns about [plaintiff’s]
instruction.” (Sinanis Dep. at 83.) Additionally, plaintiff’s mid-year evaluation report of
January 2010 noted that plaintiff had difficulty “engag[ing] in long-term planning for students
to meet individual goals and scaffold skills and activities according to needs and achievement
levels” and “determin[ing] deep, clearly aligned lesson objectives and provid[ing] multiple
pathways for students to attain them.” (Ex. T.)
Plaintiff claims she felt intimidated by Sinanis although she admits that Sinanis stood
outside her classroom door to informally observe her less than five times during the 2009-10
school year spending no more than five to ten minutes each time. Plaintiff, however, claims
that she was treated differently in that during other teachers’ observations Sinanis interacted
with those teachers and students, but did not interact with her during her observations. Plaintiff
claims that during the fall of her fourth year she experienced intimidation, stress, and hostility
causing her to experience anxiety, panic attacks, and stress-related worsening of her physical
condition forcing her to go on medical leave in and around November 14, 2009 to December
11, 2009. As noted above, plaintiff admits that she never complained of racial discrimination
to the District’s administration, but contends that she complained to her union, the Jericho
Teachers Association through her representatives Lois Burn and Maryann Risi as early as
November 2009.
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Some time during plaintiff’s fourth year, after her mid-year evaluation and before April
of 2010, on or about February of 2010, Ciuffo advised plaintiff that she would not be receiving
tenure. Her last day of work at the District was April 30, 2010. Plaintiff subsequently filed a
Complaint with the New York State Division of Human Rights (“NYSDHR”) on May 27,
2010. On April 19, 2011, the NYSDHR dismissed the complaint on grounds of administrative
convenience such that plaintiff could pursue a federal action, after which plaintiff commenced
the current action on July 7, 2011.
DISCUSSION
I.

Applicable Law and Legal Standards
Summary judgment pursuant to Rule 56 is only appropriate where admissible evidence

in the form of affidavits, deposition transcripts, or other documentation demonstrates the
absence of a genuine issue of material fact, and one party's entitlement to judgment as a matter
of law. See Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712, 716 (2d Cir. 1994). The
relevant governing law in each case determines which facts are material; "only disputes over
facts that might affect the outcome of the suit under the governing law will properly preclude
the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.
Ct. 2505, 91 L. Ed. 2d 202 (1986). No genuinely triable factual issue exists when the moving
party demonstrates, on the basis of the pleadings and submitted evidence, and after drawing all
inferences and resolving all ambiguities in favor of the non-movant, that no rational jury could
find in the non-movant's favor. Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 86 (2d Cir.
1996) (citing Fed. R. Civ. P. 56(c)).
To defeat a summary judgment motion properly supported by affidavits, depositions, or
other documentation, the non-movant must offer similar materials setting forth specific facts
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that show that there is a genuine issue of material fact to be tried. Rule v. Brine, Inc., 85 F.3d
1002, 1011 (2d Cir. 1996). The non-movant must present more than a "scintilla of evidence,"
Delaware & Hudson Ry. Co. v. Consol. Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990) (quoting
Anderson, 477 U.S. at 252), or "some metaphysical doubt as to the material facts," Aslanidis v.
U.S. Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993) (quoting Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986)), and
cannot rely on the allegations in his or her pleadings, conclusory statements, or on "mere
assertions that affidavits supporting the motion are not credible." Gottlieb v. Cnty. of Orange,
84 F.3d 511, 518 (2d Cir. 1996) (internal citations omitted).
The district court, in considering a summary judgment motion, must also be "mindful
of the underlying standards and burdens of proof," Pickett v. RTS Helicopter, 128 F.3d 925,
928 (5th Cir. 1997) (citing Anderson, 477 U.S. at 252), because the evidentiary burdens that the
respective parties will bear at trial guide district courts in their determination of summary
judgment motions. Brady v. Town of Colchester, 863 F.2d 205, 211 (2d Cir. 1988). Where the
non-moving party will bear the ultimate burden of proof on an issue at trial, the moving party's
burden under Rule 56 will be satisfied if he can point to an absence of evidence to support an
essential element of the non-movant's claim. Id. at 210-11. Where a movant without the
underlying burden of proof offers evidence that the non-movant has failed to establish her
claim, the burden shifts to the non-movant to offer "persuasive evidence that [her] claim is not
implausible." Id. at 211 (citing Matsushita, 475 U.S. at 587).
Summary judgment is generally inappropriate where questions of the defendant's state
of mind are at issue, Gelb v. Bd. of Elections of the City of N. Y., 224 F.3d 149, 157 (2d Cir.
2000), and should thus be granted with caution in employment discrimination cases. Gallo v.
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Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994); Carlton v.
Mystic Transp., Inc., 202 F.3d 129, 134 (2d Cir. 2000). Nonetheless, "summary judgment
remains available to reject discrimination claims in cases lacking genuine issues of material
fact." Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 40 (2d Cir. 1994). "The summary
judgment rule would be rendered sterile . . . if the mere incantation of intent or state of mind
would operate as a talisman to defeat an otherwise valid motion." Meiri v. Dacon, 759 F.2d
989, 998 (2d Cir. 1985). "[T]he salutary purposes of summary judgment — avoiding
protracted, expensive and harassing trials — apply no less to discrimination cases than to
commercial or other areas of litigation." Id. "When no rational jury could find in favor of the
nonmoving party because the evidence to support its case is so slight, there is no genuine issue
of material fact and a grant of summary judgment is proper." Gallo, 22 F.3d at 1224.
II.

Plaintiff's Title VII Discrimination Claim
A.

Legal Standard

In McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802-804, 93 S. Ct. 1817,
36 L. Ed. 2d 668 (1973), the Supreme Court first enunciated the now-familiar "burden-shifting
"formula used in analyzing Title VII employment discrimination claims based on indirect or
circumstantial evidence. This standard was further refined in Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 252-253, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981) and St.
Mary's Honor Center v. Hicks, 509 U.S. 502, 506-511, 113 S. Ct. 2742, 125 L. Ed. 2d 407
(1993). Under McDonnell Douglas and its progeny, a plaintiff must first establish a prima
facie case of discrimination by showing: (1) she belonged to a protected class, (2) was qualified
for the position she held or sought, and (3) suffered an adverse employment action (4) under
circumstances giving rise to an inference of discriminatory intent. Terry v. Ashcroft, 336 F.3d
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128, 137-38 (2d Cir. 2003). The burden of establishing a prima facie case of employment
discrimination has been described as "modest," Viola v. Philips Med. Sys. of N. Am., 42 F.3d
712, 716 (2d Cir. 1994), or even "minimal." Roge v. NYP Holdings, Inc., 257 F.3d 164, 168
(2d Cir. 2001). It is a burden of production, not persuasion, and involves no credibility
assessments. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S. Ct.
2097,147 L. Ed. 2d 105 (2000).
If the plaintiff establishes a prima facie case, the burden then shifts to the employer to
"articulate some legitimate, nondiscriminatory reason for [the adverse act]." Leibowitz v.
Cornell Univ., 584 F.3d 487, 499 (2d Cir. 2009) (internal quotation marks omitted). The
employer's burden of showing a legitimate non-discriminatory reason for its actions is not a
particularly steep hurdle. Federal courts do not have a "roving commission to review business
judgments," Mont. v. First Fed. Sav. & Loan Ass'n of Rochester, 869 F.2d 100, 106 (2d Cir.
1989) (quoting Graefenhain v. Pabst Brewing Co., 827 F.2d 13, 21 n.8 (7th Cir. 1987)), and
thus, "[e]vidence that an employer made a poor business judgment generally is insufficient to
establish a question of fact as to the credibility of the employer's reasons." Dister v. Cont'l
Grp., Inc., 859 F.2d 1108, 1116 (2d Cir. 1988).
Should the employer satisfy its burden, the McDonnell Douglas framework and its
presumptions and burdens disappear, leaving the sole remaining issue of "discrimination vel
non." See Reeves, 530 U.S. at 143. To rebut an employer's proffered non-discriminatory
rationale for its actions and withstand summary judgment, a plaintiff must present more than
allegations that are "conclusory and unsupported by evidence of any weight." Smith v. Am.
Exp. Co., 853 F.2d 151, 154-55 (2d Cir. 1988). "To allow a party to defeat a motion for
summary judgment by offering purely conclusory allegations of discrimination, absent any
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concrete particulars, would necessitate a trial in all Title VII cases." Meiri, 759 F.2d at 998.
Although intermediate evidentiary burdens shift back and forth under this framework, "[t]he
ultimate burden of persuading the trier of fact that the defendant intentionally discriminated
against the plaintiff remains at all times with the plaintiff." Reeves, 530 U.S. at 143.
Finally, “the standards for proving discrimination under Section 296 of the New York
Executive Law are the same as under Title VII. Lucas v. South Nassau Cmtys. Hosp., 54 F.
Supp. 2d 141, 146 (E.D.N.Y. 2008) (citing Kremer v. Chemical Constr. Corp., 456 U.S. 461,
479, 102 S. Ct. 1883, 72 L. Ed. 2d 262 (1982); Stetson v. NYNEX Serv. Co., 995 F.2d 355, 360
(2d Cir. 1993) (plaintiff’s claim under New York’s Human Rights Law “is governed by the
same standards as his federal claim”)). “Accordingly, the New York Executive Law inquiry is
subsumed within the Title VII analysis.” Id.
B.

Application to Plaintiff’s Discrimination Claim

As described above, the Court begins its analysis by determining whether the plaintiff has
made out a prima facie case of discrimination. Here, the defendants do not contest that the
plaintiff, as an African American, is a member of a protected group, nor do they dispute that she
was qualified to perform her job. The parties dispute, however, whether the plaintiff suffered any
adverse actions that occurred under circumstances giving rise to an inference of discrimination.
According to plaintiff, “[t]he adverse employment actions the Plaintiff suffered include
negative evaluations and observations while at the High School and Contiague Elementary; denial
of tenure in 2008-09 school year; transfer to Contiague; written reprimand by Sinanis; denial of
tenure in 2009; termination in 2010.” (Pl.’s Mem. in Opp’n at 9.) Moreover, she argues that her
replacement at the High School by Robyn Stern, a Caucasian female, is sufficient evidence of an
inference of discrimination. (Id. at 11.) Defendants, however, contend that Stern was not
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plaintiff’s replacement because she worked only part-time and was hired solely as a reading
teacher, whereas plaintiff worked full time and performed the duties of both a reading and an ELA
teacher.
Even assuming, however, that plaintiff could establish a prima facie case of
discrimination based on the fact that she was replaced by Stern, she has not provided any evidence
that defendants’ articulated reasons for transferring her to Contiague, i.e., that there were concerns
with plaintiff’s teaching performance at the High School, were a pretext for discrimination. See
Pesok v. Hebrew Union College – Jewish Institute of Religion, 235 F. Supp. 2d 281, 286-87
(S.D.N.Y. 2002) (holding that plaintiff’s replacement by individual outside of protected class did
not in and of itself raise evidence of pretext). Moreover, plaintiff has not raised a genuine issue of
fact as to whether any of defendants’ actions were motivated by discrimination. Plaintiff cites
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000), for its proposition that “[a]
plaintiff’s prima facie case, combined with sufficient evidence to find that the employer’s asserted
justification is false, may permit the trier of fact to conclude that the employer unlawfully
discriminated,” yet plaintiff fails to offer evidence from which the trier of fact could conclude that
the defendants’ concern about plaintiff’s performance, as noted in her evaluations, was false.
Plaintiff’s offering of evaluations from other teachers to demonstrate that “[r]ecommendations
were typically contained in every teacher’s observation” (Pl.’s Mem. in Opp’n at 13) does nothing
to discredit those recommendations and criticisms found in plaintiff’s evaluations. Moreover
discrimination cannot be inferred merely from plaintiff’s testimony that she was one of only two
African-American teachers in the District without further detail indicating that discrimination
occurred during the process of hiring any of the other teachers in the District. (Pl.’s Aff. ¶ 26.)
Furthermore, the Court finds unavailing plaintiff’s argument that pretext can be inferred
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because the District did not advise the Union that it had concerns about her performance.
According to plaintiff, “the District policy was to advise the Union of those teachers where
concerns existed and whose tenure was questionable,” however, the District did not do so in her
case. “It is true that [a defendant’s deviation] from procedural regularity . . . can raise a question
as to the good faith of the process where the [deviation] may reasonably affect the decision.”
Weinstock v. Columbia Univ., 224 F.3d 33, 45 (2d Cir. 2000) (internal quotation marks and
citations omitted). Here, however, plaintiff has not presented any evidence that the defendants’
failure to advise the union that they were going to deny her tenure in any way affected their
decision to deny tenure. As a result, the plaintiff has not presented any evidence upon which a
reasonable trier of fact could find that the District’s actions were motivated by discrimination and
plaintiff’s Title VII discrimination claims are dismissed.
III.

Plaintiff’s Title VII Hostile Work Environment Claim
In order to establish a hostile work environment claim, a plaintiff must prove: “(1) that

the workplace was permeated with discriminatory intimidation that was sufficiently severe or
pervasive to alter the conditions of his or her work environment, and (2) that a specific basis
exists for imputing the conduct that created the hostile work environment to the employer.”
Mack v. Otis Elevator Co., 326 F.3d 116, 122 (2d Cir. 2003) (internal quotation marks and
brackets omitted), abrogated on other grounds. “This test has objective and subjective
elements: the misconduct shown must be ‘severe or pervasive enough to create an objectively
hostile or abusive work environment,’ and the victim must also subjectively perceive that
environment to be abusive.” Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002) (quoting
Harris v. Forklift Sys., Inc., 510 U .S. 17, 21 (1993)); see also Demoret v. Zegarelli, 451 F.3d
140, 149 (2d Cir. 2006) (“Plaintiff must show not only that she subjectively perceived the
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environment to be abusive, but also that the environment was objectively hostile and
abusive.”).
“Isolated incidents typically do not rise to the level of a hostile work environment
unless they are ‘of sufficient severity’ to ‘alter the terms and conditions of employment as to
create such an environment.’ ” Demoret, 451 F.3d at 149 (quoting Patterson v. Cnty. of
Oneida, 375 F.3d 206, 227 (2d Cir. 2004)). However, “[t]here is no fixed number of incidents
that a plaintiff must endure in order to establish a hostile work environment,” and instead,
courts are to “view the circumstances in their totality, examining the nature, severity, and
frequency of the conduct.” Alfano, 294 F.3d at 379. What is necessary is that plaintiff
establish a link between the actions by defendants and plaintiff's membership in a protected
class. Id. at 374; Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001). Moreover, hostile
work environment claims under the NYSHRL “are analyzed under the same standard as Title
VII hostile work environment claims.” Russo v. N.Y. Presbyterian Hosp., 972 F. Supp. 2d 429,
449 (E.D.N.Y. 2013).
Here, plaintiff fails to raise a genuine question of fact that there exists a link between
the defendants’ allegedly hostile actions and the plaintiff's race. Alfano, 294 F.3d at 378
(holding that in order to make out a hostile work environment claim, plaintiff must provide
evidence indicating that the defendant's actions were motivated by discrimination). While
facially neutral circumstances may be considered as part of the totality of the circumstances, a
plaintiff must provide some basis from which a jury could rationally infer that these raceneutral actions were discriminatory. See Id. As noted in the Court’s analysis of plaintiff’s
Title VII claim, plaintiff has not raised a genuine question of fact as to whether defendants’
actions were based on race. See DeFina v. Meenan Oil Co., Inc., 924 F. Supp. 2d 423, 438–39
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(E.D.N.Y. 2013) (“Plaintiff has simply not shown—through evidence of [race] related
comments or actions, through evidence of other similarly situated co-workers who were not
subjected to the same conduct, or through any other evidence—how the alleged conduct was
discriminatory based on plaintiff's [race].”). As a result, plaintiff’s hostile work environment
claim is dismissed.
IV.

Plaintiff’s Title VII Retaliation Claim
Section 704(a) of Title VII makes it unlawful to retaliate against an employee "because

he has opposed any practice made an unlawful employment practice by this subchapter, or
because he has made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this subchapter." Deravin v. Kerik, 335 F.3d 195,
203 (2d Cir. 2003) (citing 42 U.S.C. § 2000e-3(a)). "In order to present a prima facie case of
retaliation under Title VII . . ., a plaintiff must adduce evidence sufficient to permit a rational
trier of fact to find [1] that [] he engaged in protected participation or opposition under Title
VII . . ., [2] that the employer was aware of this activity,” and “[3] that the employer took
adverse action against the plaintiff.” Kessler v. Westchester Cty. Dep’t of Social Servs., 461
F.3d 199, 205-06 (2d Cir. 2006) (internal quotation omitted). In addition, the Supreme
Court recently clarified the causation standard required by § 704(a) stating, “a plaintiff
making a retaliation claim under § 2000e-3(a) must establish that his or her protected
activity was a but-for cause of the alleged adverse action by the employer,” as distinct from “a
motivating factor,” which had previously been the standard in the Second Circuit. Univ. of
Tex. Southwestern Med. Ctr. v. Nassar, 2013 WL 3155234, *16 (June 24, 2013); Kessler, 461
F.3d at 206.
Claims of retaliation pursuant to Title VII are analyzed according to the burden-shifting
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framework set forth in McDonnell Douglas. See Terry, 336 F.3d at 141. Once the employee
has established a prima facie case, the employer “must proffer a legitimate, non-discriminatory
reason for the adverse action. If it does so, then the burden shifts back to the [employee] to
demonstrate pretext.” Slattery v. Swiss Reinsurance. Am. Corp., 248 F.3d 87, 94-95 (2d Cir.
2001). Traditionally, courts have applied the same standards for proving retaliation under the
NYSHRL that are applied under Title VII. See Kelly v. Howard I. Shapiro & Assocs.
Consulting Eng'rs, P. C., 716 F.3d 10, 14 (2d Cir. 2013) (“The standards for evaluating ...
retaliation claims are identical under Title VII and the NYSHRL.” (citation omitted)).
Here, defendants contend that plaintiff has not raised a genuine issue of fact as to
whether she engaged in protected activity because it is undisputed that plaintiff “never
complained to anyone at the District about any aspect of her employment.” (Defs.’ Mem. in
Supp. at 16.) According to defendants, “Plaintiff first engaged in protected activity when she
filed a complaint with the NYSDHR on or about May 27, 2010,” and by that time “her
employment relationship with the District had already been severed.” (Id.) Plaintiff claims,
however, that “conversations with her Union represent[atives] concerning the disparity in
treatment” constitute protected activity. (Pl.’s Mem. in Opp’n at 18.) In support of her
position, plaintiff cites to e-mails with Maryann Risi and notes from a meeting with another
union representative. (See Exs. 17, 27, 33.)
“[A]n employee need not establish that the conduct she opposed was in fact a violation
of Title VII, but rather, only that she had a good faith, reasonable belief that the underlying
employment practice was unlawful.” Reed v. A.W. Lawrence & Co., Inc., 95 F.3d 1170, 1178
(2d Cir. 1996) (internal quotation marks and citations omitted). However, “[i]t is objectively
unreasonable to believe that complaining about poor treatment in the workplace entirely
15

unrelated to any trait, protected or otherwise, is a ‘protected activity’ under Title VII.”
Johnson v. City Univ. of N. Y., 2014 WL 4412475, at *4 (S.D.N.Y. Sept. 8, 2014); Kelly v.
Howard I. Shapiro & Assocs. Consulting Engineers, P.C., 716 F.3d 10, 16 (2d Cir. 2013).
Moreover, to the extent the evidence cited by plaintiff provides any evidence that she
complained about discrimination to the union representatives, (Pl.’s Dep. at 289-91) there is no
evidence that those representatives actually brought plaintiff’s discrimination complaints to the
attention of anyone in the District. In fact, Risi testified at her deposition that she never had a
conversation with any of the defendants about plaintiff’s claims of discrimination. (Risi Dep.
at 80-82.) Therefore, plaintiff has failed to raise a question of fact regarding the second
element of her prima facie case, i.e., whether defendants were aware of her protected activity. 1
See Grant v. New York State Office for People with Developmental Disabilities, 2013 WL
3973168, at *9 (E.D.N.Y. Jul. 30, 2013) (holding that plaintiff’s complaint to union
representative did not constitute defendant’s “general corporate knowledge” of protected
activity where there was no evidence that union representative actually contacted defendant).
As a result, plaintiff’s retaliation claim must fail.
V.

Plaintiff’s 42 U.S.C. §§ 1981 and 1983 Claims
A.

Legal Standard

Plaintiff asserts claims pursuant to 42 U.S.C. § 1981 against all of the defendants. 42
U.S.C. § 1981 provides that all persons within the jurisdiction of the United States shall have
the right “to make and enforce contracts.” This section prohibits discrimination “with respect
to the enjoyment of benefits, privileges, terms, and conditions of a contractual relationship,

1

Although plaintiff’s Ex. 27, an e-mail from Risi to plaintiff expresses that Risi would
speak to Bauer regarding plaintiff’s complaints about being observed, this e-mail makes no
mention of potential discrimination and does not suggest that Risi actually did notify Bauer.
16

such as employment.” Patterson v. Cnty. of Oneida, 375 F.3d 206, 224 (2d. Cir. 2004) (citing
Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 68-69 (2d Cir. 2000)).
Additionally, plaintiff asserts claims pursuant to 42 U.S.C. § 1983 against Ciuffo, Bauer,
and Sinanis. 42 U.S.C. § 1983 allows an individual to bring an action against a “person, who,
under color of any statute, ordinance, regulation, custom or usage, of any State...subjects, or
causes to be subjected, any citizen of the United States...to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws.” It is not itself a substantive
right, but provides a method for vindicating federal rights such as equal protection under the
Fourteenth Amendment. Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979). Here, plaintiff
alleges that the named defendants “denied the Plaintiff equal protection of the laws in that they
discriminated against the Plaintiff in the terms and conditions of her employment . . . in violation
of the Fourteenth Amendment to the Constitution of the United States; and Article I of the
Constitution of the State of New York.” (Amend. Compl. ¶ 132.)
B.

Application to Plaintiff’s § 1981 Claim

The McDonnell Douglas analysis applies to both Title VII discrimination claims and
claims under § 1981. Johnson v. Cty. of Nassau, 480 F. Supp. 2d 581, 605 (E.D.N.Y. 2007).
As a result, since plaintiff has not provided sufficient evidence raising a discrimination claim
under Title VII, her claims under § 1981 must fail as well. See id. (quoting Patterson, 375
F.3d at 225) ("Most of the core substantive standards that apply to claims of discriminatory
conduct in violation of Title VII are also applicable to claims of discrimination in employment
in violation of § 1981 . . . and the factors justifying summary judgment dismissing Patterson's
Title VII claim against the municipal defendants for termination of his employment equally
support the summary dismissal of his claims for termination brought under 42 U.S.C. §§ 1981
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and 1983.") Similarly, retaliation and hostile work environment claims under § 1981 are
generally analyzed in the same manner as under Title VII. Acosta v. City of New York, 2012
WL 1506954 at *8 (S.D.N.Y. Apr. 26, 2012) (“Claims of retaliation under [Title VII and §
1981] are generally analyzed in the same way, with the same standards of liability.”); Johnson
v. Long Island Univ., 2014 WL 4926324, at *5 (E.D.N.Y. Sept. 30, 2014). Since this Court has
dismissed plaintiff’s Title VII retaliation and hostile work environment claims, her § 1981
retaliation and hostile work environment claims are also dismissed.
C.

Application to Plaintiff’s Fourteenth Amendment Claims

Plaintiff concedes that the Court should use “the same McDonnell Douglas framework
to analyze [equal protection] cases brought pursuant to § 1983.” (Pl.’s Mem. in Opp’n at 20.)
As discussed above, under the McDonnell Douglas analysis, plaintiff’s claims do not withstand
summary judgment, and therefore, her Fourteenth Amendment claims also fail. Moreover,
since the reach of the New York equal protection clause, Article I § 11, “is co-extensive with
the federal provision,” plaintiff’s state equal protection claims also fail. See Bostick v. Suffolk
County, 191 F. Supp. 2d 665, 674 n.6 (E.D.N.Y. 2002).
VI.

Negligent and Intentional Infliction of Emotional Distress
Liability for negligent or intentional infliction of emotional distress will be found only

where the “defendant engaged in conduct so outrageous in character, and so extreme in degree,
as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community.” Meadows v. Planet Aid, Inc., 676 F. Supp. 2d 83, 97–98
(E.D.N.Y. 2009) (citations and internal quotation marks omitted); accord Romero v. City of
New York, 839 F. Supp. 2d 588, 630–31 (E.D.N.Y. 2012). Further, while a plaintiff is not
required to show that he suffered physical injury as part of his claim for negligent infliction of
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emotional distress, “the circumstances under which recovery may be had for purely emotional
harm are extremely limited,” and, therefore, the plaintiff's claim “must generally be premised
upon breach of a duty owed directly to plaintiff which either endangered the plaintiff's physical
safety or caused the plaintiff fear for his or her own physical safety.” Meadows, 676 F. Supp.
2d at 98 (quoting Blake v. Race, 487 F. Supp. 2d 187, 219 (E.D.N.Y. 2007)) (internal quotation
marks omitted).
Here, Plaintiff argues that “the record reveals that [she] was subjected to continued
observations and evaluations after the decision had been made to terminate her.” (Pl.’s Mem.
in Opp’n at 19.) Plaintiff, however, fails to present any argument that this conduct rose to the
level of outrageous character required to sustain her claims. Moreover, the Court finds that
Plaintiff's allegations, even if assumed to be true, fall short of the type of outrageous conduct
required to state a cause of action for negligent or intentional infliction of emotional distress.
Accordingly, these claims are dismissed.
CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment pursuant to Rule
56 is granted in its entirety, and plaintiff’s claims are dismissed in their entirety.

SO ORDERED.
Dated: Central Islip, New York
October 29, 2014
/s/
Denis R. Hurley
United States District Judge

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