Flanagan v. North Shore Long Island Jewish Health System et al

Filing 68

ORDER granting 45 Motion for Summary Judgment. For the reasons set forth herein, the Court grants defendants motion for summary judgment as to the federal claims. The Court declines to exercise supplemental jurisdiction over the state law claims and, thus, dismisses such claims without prejudice. The Clerk of the Court shall enter judgment accordingly and close this case. SO ORDERED. Ordered by Judge Joseph F. Bianco on 9/30/2014. (Chipev, George)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 11-CV-5246 (JFB)(SIL)
_____________________

EDWARD J. FLANAGAN,
Plaintiff,
VERSUS

NORTH SHORE LONG ISLAND JEWISH HEALTH SYSTEM, HUNTINGTON HOSPITAL,
KEVIN LAWLOR, AIDER AND ABETTOR, LINDA FISCHER, AIDER AND ABETTOR,
Defendants.
___________________
MEMORANDUM AND ORDER
September 30, 2014
___________________

JOSEPH F. BIANCO, District Judge:
Plaintiff
Edward
J.
Flanagan
(“Flanagan” or “plaintiff”) brings this action
against defendants North Shore Long Island
Jewish
Health
System
(“NSLIJ”),
Huntington Hospital (“the Hospital”), Kevin
Lawlor (“Lawlor”), and Linda Fischer
(“Fischer”), asserting causes of action for
sexual harassment and retaliation against the
Hospital under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. §§ 2000e et seq.
(“Title VII”), and against all defendants
under the New York State Human Rights
Law (“NYSHRL”), N.Y. Exec. Law §§ 290
et seq. Plaintiff alleges that he was sexually
harassed by Fischer, passed over for
promotion in 2008 when he rebuffed
Fischer’s sexual advances, and discharged in
August 2009 in retaliation for complaining
about the sexual harassment.

Defendants move for summary judgment
pursuant to Federal Rule of Civil Procedure
56. For the following reasons, the Court
grants the motion in its entirety on the
federal claims, and declines to exercise
supplemental jurisdiction over the state
claims. First, the federal hostile work
environment claim under Title VII is timebarred and, in any event, cannot survive
summary judgment because there is no
evidence from which a rational jury could
find the extremely vague allegations of
harassment involving Fischer claimed by
plaintiff were sufficiently severe or
pervasive to alter the conditions of his
employment and create an abusive working
environment. Second, the federal quid pro
quo claim under Title VII, based upon the
failure to promote plaintiff in late 2009 or
the decision to terminate him in 2009,
cannot survive summary judgment because
there is no evidence from which a rational

1. The Defendants

jury could conclude that either of those
decisions (or a reference to a possible
severance package after plaintiff failed to
obtain the promotion) was, as plaintiff
contends, based upon a failure by plaintiff to
rekindle his sexual relationship with Fischer
(which had ended in 2000). Third, the
federal retaliation claim under Title VII
cannot survive summary judgment because
plaintiff has proffered no evidence from
which a rational jury could find that the
legitimate,
non-discriminatory
reasons
articulated by defendants for the termination
decision—namely, plaintiff’s performance
and the uncontroverted evidence that
numerous employees complained to
management in 2009 about increasing
problems with plaintiff’s unprofessional
tone and performance—were a pretext for
retaliation. Although plaintiff disputes the
accuracy of these complaints, he has
proffered no evidence that places in dispute
the fact that the complaints were made
(including in contemporaneous emails), and
there is no evidence that the decision by the
President and CEO of the Hospital to
terminate plaintiff based upon those
complaints was a pretext for retaliation.
I.

The Hospital is located in Huntington,
New York. In 2011, it joined the Obligated
Group of NSLIJ, having previously had an
affiliation with NSLIJ. (Def. 56.1 ¶¶ 1–2.)
The Hospital has its own Board of Directors
and is an independent legal entity from
NSLIJ.1 (Id. ¶ 3.) The Hospital has policies
and procedures in place to prevent and
promptly correct any claims of sexual
harassment, and forbids retaliation against
any individual who makes a complaint. (Id.
¶ 6.) Lawlor has been the President and
Chief Executive Officer of the Hospital
since 2005. (Id. ¶ 4.) Fischer, who
previously was the Director of the Hospital
Information Services (“HIS”) Department
and supervised plaintiff, is the Chief
Information Officer. (Id. ¶¶ 5, 11.)
2. Flanagan’s and Fischer’s
Relationship
Plaintiff began working in the HIS
Department in April 1995, and he met
Fischer shortly thereafter. (Id. ¶¶ 8, 10.) In
1999, Flanagan and Fischer engaged in
sexual relations. (Id. ¶ 14.) According to
Flanagan, he ended the sexual relations with
Fischer in the spring of 2000. (Id. ¶ 17.)
Thereafter, Flanagan and Fischer continued
working together and socialized, including
at events hosted by Fischer and her family.
(Id. ¶¶ 18–19.) Flanagan, among others,
nominated Fischer for a leadership award at
the Hospital in 2006, and he testified that he
never had any trouble expressing himself to
Fischer. (Id. ¶¶ 28–29.) It is undisputed that
from the end of the sexual relationship
through the end of 2008, Flanagan suffered
no adverse employment action, i.e., no

BACKGROUND

A. Factual Background
The Court takes the following facts from
the parties’ affidavits, depositions, exhibits,
and Rule 56.1 Statements of Fact. The Court
construes the facts in the light most
favorable to the nonmoving party. See
Capobianco v. City of New York, 422 F.3d
47, 50 (2d Cir. 2005). Although the Rule
56.1 statements contain specific citations to
the record, the Court cites to the statements
rather than to the underlying citations.
Unless otherwise noted, where a Rule 56.1
statement is cited, that fact is undisputed or
the opposing party has not pointed to any
contradictory evidence in the record.

1

That NSLIJ counsel investigated plaintiff’s
harassment claims and the Hospital’s Board of
Directors reports to NSLIJ do not controvert the fact
that the Hospital is a separate legal entity from
NSLIJ. (Contra Pl. 56.1 Response ¶ 3.)
2

reduction in pay, loss of benefits, or loss of
title. (Def. 56.1 ¶ 27; see Pl. 56.1 Response
¶ 27 (focusing on events at end of 2008 and
in 2009).) Fischer even helped Flanagan
receive a substantial raise and a promotion
to Network Engineer in 2001.2 (Def. 56.1
¶ 27.)

these instances at or around the time they
allegedly occurred. (Id. ¶ 36.) He first
reported the incidents to Lawlor on February
2, 2009. (Pl. 56.1 Response ¶ 36.)

After 2001, Fischer never told plaintiff
she wanted to rekindle a sexual relationship.
(Id. ¶ 31.) She never sent handwritten
communications or emails to Flanagan in
which she attempted to rekindle a sexual
relationship, either. (Id. ¶ 32.) Flanagan,
however, “felt” that Fischer “was always
moving towards that direction to get back to
that point in the relationship where he would
engage in sex.” (Id. ¶ 33.) He believes
Fischer wanted to rekindle a sexual
relationship after 2001 based on:

Flanagan believes he suffered adverse
employment actions, including a failure to
receive a promotion at the end of 2008 and
his termination in 2009, because he would
not renew his relationship with Fischer and
because he complained about her behavior
towards him. Defendants contend that there
is absolutely no evidence to support those
claims, and that there are legitimate, nondiscriminatory reasons for their decisions.

3. Events Leading to Plaintiff’s
Termination

a. Performance Evaluations
Plaintiff received “above standard” or
“exceptional” ratings in several performance
areas in his evaluations from 2001–2007, all
of which were completed by Fischer. (See
generally Performance Evaluations, Nardo
Decl. Ex. 3.) There is no 2008 or 2009
evaluation in the record. According to
Fischer, she prepared a written performance
appraisal for 2008, but when she met with
Flanagan to deliver the evaluation, he stated
that the process was “stupid and a waste of
time,” signed the only copy of the
evaluation, took it to make more copies, and
never
returned
it.
(Def.
56.1
Counterstatement Response ¶ 34.) Fisher
testified that the 2008 performance appraisal
was “similar” to the 2007 evaluation, and
she could not remember anything negative
indicated on the evaluation. (Id. ¶ 35.) No
specific interpersonal “complaints” were
noted in the earlier evaluations. (Id. ¶ 36.)

Brushing up against people in the
elevator, pushing back against me in
the elevator, perhaps a look I didn’t
like very much that I thought was
inappropriate, yelling . . . there was
several occasions, perhaps in an
elevator or in the office, moving
around a desk that these types of
contact occurred. I did not think they
were necessarily of an innocent,
accidental nature.
(Id. ¶ 34.) Although such incidents occurred
after 2001, plaintiff does not remember
exactly when these incidents last occurred.
(Id. ¶ 35.) Flanagan never reported any of
2

Plaintiff believes he received the raise because
Fischer was involved in the decisionmaking process.
(See Deposition of Edward Flanagan (“Flanagan
Dep.”) at 108–13, Fullerton Aff. Ex. 1.) Plaintiff also
testified that he received the raise after he threatened
to quit after thirty days because he thought he was
underpaid. (Id. at 109.) Although Fischer advocated
on plaintiff’s behalf, others involved in the
decisionmaking process had no knowledge of
Fischer’s and Flanagan’s relationship. (See Def. 56.1
Counterstatement Response ¶ 39.)

b. Succession Planning
In 2008, succession planning began
throughout the Hospital, including in the
HIS Department. (Def. 56.1 ¶ 39.) At the
3

time, Thomas Hoeft (“Hoeft”) was the
Executive Vice President of the Hospital,
Michael Quartier (“Quartier”) was the Vice
President of Administration, and Fischer
reported to Hoeft. (Id. ¶¶ 40, 45.) According
to defendants, Hoeft, Quartier, and Fischer
made the business decision—approved by
Lawlor—that Flanagan was not the
appropriate candidate to potentially assume
the leadership of the HIS Department. (Id.
¶¶ 40–41.) Fischer alone did not decide that
Flanagan would not be her potential
successor. (Deposition of Linda Fischer
(“Fischer Dep.”) at 94:16–23.)3 For instance,
Quartier testified that although plaintiff had
the cognitive and technical skills for a
promotion, “the interpersonal [aspect] was
really preventing him from being
considered. In order to be a leader, you’ve
got to have people willing to follow you and
it became more and more apparent that the
staff of the IT department would never
follow [Flanagan].” (Deposition of Michael
Quartier (“Quartier Dep.”) at 87:21–88:5,
Fuller Aff. Ex. 5.) Quartier explained that,
even though some complaints were not
reflected on Flanagan’s evaluations for
unknown reasons, “[i]n 2008 there were
more and more complaints from [plaintiff’s]
coworkers and people who reported to him
that he was extremely difficult, if not
impossible to work for.” (Id. at 89:2–14.)

Kaziun (“Kaziun”) and Lil McAlpin
(“McAlpin”)—ultimately were promoted to
newly created Assistant Director positions.
(Def. 56.1 ¶¶ 47–48.) In December 2008,
Flanagan was advised of the decision, first
privately by Fischer, and then more formally
in a meeting with Fischer and Quartier. (Id.
¶ 49.) When Fischer met with Flanagan, she
said she would understand if he did not want
to stay at the Hospital, and that maybe the
Hospital would be willing to offer him some
type of severance package. (Id. ¶ 50.)
Quartier and Fischer told Flanagan that,
although there was no issue with his
technical skills, he lacked leadership skills.
(Id. ¶ 51.) Flanagan still was paid more than
Kaziun and McAlpin, although he did not
receive a $5000 raise through the promotion.
(Id. ¶ 52; Pl. 56.1 Response ¶ 52.) He also
does not disagree with the Hospital’s
decision to promote Kaziun and McAlpin.
(Def. 56.1 ¶ 55.) He testified that he “never
applied for the position of assistant director
nor sought it. Therefore, I was never
disappointed for Linda not reserving it for
me.” (Flanagan Dep. at 459:10–13.) There is
no evidence that anyone but Fischer knew of
her sexual relations with plaintiff.
c. Plaintiff’s Initial Complaint
On February 2, 2009, two months after
the meeting with Fischer and Quartier,
Flanagan complained to Lawlor that he had
been passed over for the promotions because
of his sexual relationship with Fischer in
1999 and 2000 and in retaliation for his
refusal to renew the relationship, and that
Fischer had created a hostile work
environment. (Def. 56.1 ¶¶ 53–54; see
February 2 Complaint, Fullerton Aff. Ex.
11.) The denied promotion alone is not what
prompted Flanagan to write to Lawlor.
Instead, plaintiff stated that he complained
because, among other things, he was afraid
he was going to get fired and Fischer was
discussing severance. (See Flanagan Dep. at

With the approval of Hoeft, Quartier,
and Lawlor, two people in the HIS
Department other than Flanagan—John
3

Plaintiff claims Fischer denied him the promotion
because he refused to rekindle the relationship and
refused her sexual advances, and Fischer believed
that plaintiff did not have the skills for the position.
(Pl. 56.1 Response ¶ 40.) According to Fisher, Hoeft
told her she could choose anyone but plaintiff to be
her potential successor. (Def. 56.1 Counterstatement
Response ¶ 42.) As discussed in more detail infra,
plaintiff’s speculation as to Fischer’s motives,
standing alone, cannot create a genuine issue of
material fact as to the denied promotion.
4

352:19–24.) Flanagan also believes that, by
December 2008, the Hospital had decided to
either terminate him or force him out. (Def.
56.1 ¶ 59.) On February 6, 2009, Lawlor and
Quartier met with Flanagan to hear his
allegations in detail and discuss how his
claim would be investigated. (Id. ¶ 60.)
Flanagan stated that he did not want
Quartier to conduct the investigation. (Id.
¶ 64.) Quartier arranged for Kim Green,
Deputy Chief Corporate Compliance Officer
of NSLIJ, to conduct an independent
investigation. (Id. ¶ 65.)

Although the Hospital was aware that
Flanagan had occasional issues with some
coworkers before December 2008,5 which
informed the decision not to promote him,
the evidence indicates that problems became
more extensive after December 2008.
Employees, including Fischer, believe that
after the announcement of the promotions,
Flanagan
became
increasingly
nonresponsive to legitimate work requests,
combative, and disruptive to the HIS
Department and other departments in the
Hospital. (Id. ¶ 73.) He also was frequently
absent or unavailable. (Id. ¶ 74.) For
instance, McAlpin stated that, although she
did not have personal problems with
Flanagan, “he could cause people to blow
up, or reduce them to tears,” and she
“remember[s] always being on edge in his
presence, because you never knew when he
was going to say something insulting.”
(Declaration of Linda McAlpin (“McAlpin
Decl.”) ¶¶ 4–5.) David Lombardi, who also
worked in the HIS Department, stated that
Flanagan’s “conduct created a lot of
unnecessary stress for me and the rest of the
employees in the HIS Department,”
especially after 2008. (Declaration of David
Lombardi (“Lombardi Decl.”) ¶¶ 4–6.)6

During the investigation, Flanagan
reported to someone other than Fischer. (Id.
¶ 66.) Green interviewed Flanagan, Fischer,
and six other employees, and reviewed
numerous documents. (Id. ¶ 67.) She
concluded that there was no credible
evidence to support Flanagan’s claims of
sexual
harassment,
hostile
work
environment, or retaliation. (Id. ¶ 70; see
Green Report, Fullerton Aff. Ex. 13.)
According to Green, others described
Flanagan’s declining performance and
inability to get along with colleagues, and
several, such as Stephen Smith (“Smith”)
and Catherine Polcari (“Polcari”), reported
being deeply adversely affected by his
behavior. (Def. 56.1 ¶ 68.) No one
corroborated Flanagan’s allegations of
sexual harassment.4 (Id. ¶ 69.)

allegations of sexual harassment. Moreover, the fact
that Fischer admitted to having a sexual relationship
with Flanagan that ended in 2001 does not, in itself,
show harassment in 2008 or 2009, and certainly does
not undermine the complaints that management
received about Flanagan in that timeframe that
ultimately led to his termination.

4

Lawlor testified that he did not say some of the
statements attributed to him by Green. (See
Deposition of Kevin Lawlor (“Lawlor Dep.”) at 116–
26, Nardo Decl. Ex. 5.) Plaintiff, thus, claims that
there are issues of fact because the interview notes
are inaccurate and Fischer admitted to having a
sexual relationship. (Pl. 56.1 Response ¶ 69.)
However, as discussed infra, it is uncontroverted that
numerous employees complained (including in
contemporaneous emails) to management about
plaintiff’s increasingly unprofessional conduct and
performance issues in late 2008 and 2009. Thus, even
assuming arguendo that there were some
inaccuracies in the report, a rational jury could not
conclude that Green falsified complaints to cover

5

For instance, Polcari and Smith complained to
Fischer in 2007 and 2008, respectively, regarding
their treatment by Flanagan. (See Green Report Exs.
D, F (emails from Smith and Polcari).) There is no
evidence that Flanagan was formally disciplined in
response to these emails. Flanagan and Fischer,
however, discussed Flanagan’s refusal to work
cooperatively with Smith in July 2008. (See July
2008 Audio Recording, Fullerton Reply Aff. Ex. 36.)
6

Although plaintiff acknowledges that employees
had issues with him, he speculates that the complaints
5

On May 14, 2009, Quartier gave
Flanagan performance counseling for
unavailability, tardiness, and lack of
courtesy. (Def. 56.1 ¶ 74; see Quartier
Memorandum, Fullerton Aff. Ex. 15.)
Plaintiff claims the counseling was
unnecessary because he did not punch a
timecard, had no established time to report
to work, and had been evaluated as
“exceptional” for punctuality. (Pl. 56.1
Response ¶ 75.) On June 11, 2009, Quartier
issued a written warning to Flanagan related
to his inadequate level of responsiveness for
the Intellitec I.D. Badge System Project.
(Def. 56.1 ¶ 76.)

meeting ended after an exchange between
Fischer and Flanagan regarding a project.
(Id. ¶ 80.) Two employees at that meeting,
Polcari and Lombardi, went to see Quartier
to ask him to do something about Flanagan.
(Id. ¶ 81.) Polcari testified that Flanagan had
become very defensive about projects that
had been on the agenda for months that were
not complete, that Flanagan and Fischer
engaged in a back-and-forth before Fischer
ended the meeting, and that Flanagan “was
completely out of line” during the meeting
and “looked like he lost it.” (Deposition of
Catherine Polcari (“Polcari Dep.”) at 41–44,
Fullerton Aff. Ex. 6.) On July 20, 2009,
Lombardi wrote to Lawlor to complain
about Flanagan’s conduct, stating that he
had been aggressive to all staff present and
especially Fischer. (Letter to Lawlor,
Declaration of David Lombardi (“Lombardi
Decl.”) Ex. B.) Stephen Smith, who was not
at the meeting but saw Fischer crying in her
office afterward, also spoke with Lawlor.
(Declaration of Stephen Smith (“Smith
Decl.”) ¶ 14.) Other employees sent emails
and written statements to Kaziun,
Flanagan’s supervisor, about Flanagan’s
behavior, and they reported that he was
causing tension within the HIS Department.
(Def. 56.1 ¶ 83.) Kaziun also prepared a
statement expressing his view that Flanagan
had
behaved
inappropriately
and
insubordinately at the meeting. (Id. ¶ 85; see
Declaration of John Kaziun (“Kaziun
Decl.”) ¶¶ 7–10.)7

d. The July 17, 2009 Meeting
On July 17, 2009, Fischer, Quartier,
Hoeft, and Kaziun prepared a formal written
disciplinary warning for Flanagan. (Id.
¶ 77.) The warning sets forth four specific
examples of projects on which Flanagan’s
performance had failed to meet expectations.
(Id. ¶ 78.)
That same day, a HIS Department staff
meeting was held, with sixteen members of
the Department present. (Id. ¶ 79.) The
were manufactured and points to his earlier favorable
performance reviews. (See Pl. 56.1 Response ¶¶ 6,
72–73.) Plaintiff has failed to create a genuine
dispute of material fact on this issue. See, e.g., Kerzer
v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998)
(“Conclusory allegations, conjecture, and speculation
. . . are insufficient to create a genuine issue of
fact.”). The earlier performance reviews are not
probative of plaintiff’s conduct after 2008. He also
does not contend that the numerous employees who
complained about him harbored any discriminatory
animus, and there can be no claim that management
fabricated these complaints, especially because there
were numerous contemporaneous emails by these
employees documenting their complaints (as well as
declarations submitted with the summary judgment
motion). Those complaints are discussed in more
detail infra, in connection with the Court’s legal
analysis. In short, other than sheer speculation,
plaintiff offers no evidence that management
fabricated any of the complaints.

7

Plaintiff claims that the substance of these
complaints is in dispute, pointing to Polcari’s
testimony that Flanagan did not speak for twenty-five
minutes and that the recording of the meeting played
for her during her deposition sounded milder than she
remembered. (Pl. 56.1 Response ¶ 81.) Leonid Frid
(“Frid”) testified that Flanagan spoke for
approximately five minutes and did not try to
provoke Fischer. (Id.) The Court concludes that
plaintiff’s contentions do not raise any genuine
dispute of material fact as to the relevant issues. First,
as discussed infra, the Court has listened to the actual
6

On July 19, 2009, two days after the
meeting, Flanagan reported to Lawlor that
Fischer acted inappropriately at the meeting
and asked him to intervene, and Lawlor
agreed to investigate. (Def. 56.1 ¶ 86; see
July 19 Emails, Fullerton Aff. Ex. 22.)
Plaintiff
claims
he
reported
the
discrimination and humiliation because he
was being punished at the meeting without
reason and that he acted appropriately. (Pl.
56.1 Response ¶ 86.)

then suspended Flanagan pending further
investigation.8 (Id. ¶ 88.) Lawlor and
Quartier met with Flanagan on Tuesday,
July 21, 2009, informed him of his
suspension, and gave him the Notice of
Disciplinary Action that had been prepared
the previous Friday. (Id. ¶ 89.) Lawlor then
proceeded to interview other employees who
had been at the meeting. (Id. ¶ 90.) They
reported that Flanagan’s behavior had made
them uncomfortable, and that he had acted
inappropriately both at the July 17 meeting
and at other times. (Id. ¶ 91; see Lawlor
Dep. at 66–82 (detailing notes from
investigation).) None of the employees
believed Fischer was at fault. (Def. 56.1
¶ 92.) Lawlor concluded that Flanagan’s
behavior since the succession planning
announcement was disruptive and could not
be permitted to continue. (Def. 56.1 ¶ 93.)
Lawlor testified that he terminated Flanagan
as a result of the investigation and
Flanagan’s performance over the previous
months, the fact that the HIS Department
was falling apart, and the danger that Fischer
could leave the Hospital. (Lawlor Dep. at
152.) Fischer was not involved in the
decision
to
terminate
Flanagan’s
employment. (Def. 56.1 ¶ 95.) On August
14, 2009, Lawlor notified Flanagan of his
discharge. (Id. ¶ 96.) Flanagan was replaced
by another member of the HIS Department,
Ian Farber. (Id. ¶ 98.)

Lawlor conducted a preliminary
investigation, spoke to some employees, and
reviewed emails from them regarding
Flanagan’s conduct. (Def. 56.1 ¶ 87.) He
recording, and no rational juror could find that it
supports plaintiff’s contention that he behaved in a
completely professional and non-confrontational
manner during the meeting. Second, even if
plaintiff’s statements were not as long or as abusive
as Polcari remembered them (once she listened to the
recording), she testified that she saw Fischer in tears
after the meeting; that she believes Flanagan’s
behavior at the end of the meeting was
unprofessional and insubordinate; and that, although
the tape sounds milder than her memory, “[y]ou
could physically see that he was not happy, not going
to cooperate, and just going to be – temper tantrum.”
(Polcari Dep. at 78, 88–91, Fullerton Aff. Ex. 6,
Fullerton Reply Aff. Ex. 33.) Third, Frid’s testimony
is not probative because it is undisputed that he did
not complain about Flanagan’s conduct, and his
impressions were based on the audio of the meeting,
which was played at his deposition. (See Deposition
of Leonid Frid (“Frid Dep.”) at 9–11, 21–22, 25–26,
Nardo Decl. Ex. 9, Fullerton Reply Aff. Ex. 34.) Frid
also said he could not recall exactly what happened at
the meeting. (See id. at 25–26.) Fourth, plaintiff’s
reliance on a statement by an attendee that Fischer
was “nuts” or “crazy” is unavailing; the statement is
inadmissible
hearsay.
(See
Def.
56.1
Counterstatement Response ¶ 58 (objecting to
statement).) Finally, and most importantly, any later
characterization of the events of July 17 by plaintiff
or other employees does not change the
uncontroverted fact that several employees
complained about plaintiff’s behavior to management
at the time (including in contemporaneous emails),
and there is no evidence that the complaints were
fabricated by management.

Flanagan filed his initial charge of
discrimination with the Equal Employment
Opportunity Commission (“EEOC”) on May
26, 2009. (Def. 56.1 ¶ 99.) On or about
January 25, 2010, Flanagan filed a second
charge alleging retaliation for filing the
initial charge. (Id. ¶ 100.)

8

Plaintiff claims he was suspended because of his
February 2009 complaint of discrimination, EEOC
charge, and complaint of retaliation based on the July
17, 2009 meeting. (Pl. 56.1 Response ¶ 88.)
7

party opposing summary judgment, to draw
all reasonable inferences in favor of that
party,
and
to
eschew
credibility
assessments.’” Amnesty Am. v. Town of W.
Hartford, 361 F.3d 113, 122 (2d Cir. 2004)
(quoting Weyant v. Okst, 101 F.3d 845, 854
(2d Cir. 1996)); see Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)
(summary judgment is unwarranted if “the
evidence is such that a reasonable jury could
return a verdict for the nonmoving party”).

B. Procedural Background
Plaintiff filed his complaint on October
27, 2011. Defendants answered on January
13, 2012. Plaintiff filed an amended
complaint on March 30, 2012, and
defendants answered on April 11, 2012.
Plaintiff filed a second amended complaint
on June 28, 2012, and defendants answered
on July 12, 2012. Defendants filed their
motion for summary judgment on April 30,
2013. Plaintiff opposed on October 31,
2013. Defendants replied on November 15,
2013. The Court held oral argument on
January 13, 2014. The Court has fully
considered the submissions of the parties.
II.

Once the moving party has met its
burden, the opposing party “‘must do more
than simply show that there is some
metaphysical doubt as to the material
facts . . . . [T]he nonmoving party must
come forward with specific facts showing
that there is a genuine issue for trial.’”
Caldarola v. Calabrese, 298 F.3d 156, 160
(2d Cir. 2002) (alteration and emphasis in
original) (quoting Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574,
586–87 (1986)). As the Supreme Court
stated in Anderson, “[i]f the evidence is
merely colorable, or is not significantly
probative, summary judgment may be
granted.” 477 U.S. at 249–50 (citations
omitted). Indeed, “the mere existence of
some alleged factual dispute between the
parties alone will not defeat an otherwise
properly supported motion for summary
judgment.” Id. at 247–48 (emphasis in
original). Thus, the nonmoving party may
not rest upon mere conclusory allegations or
denials but must set forth “‘concrete
particulars’” showing that a trial is needed.
R.G. Grp., Inc. v. Horn & Hardart Co., 751
F.2d 69, 77 (2d Cir. 1984) (quoting SEC v.
Research Automation Corp., 585 F.2d 31, 33
(2d Cir. 1978)). Accordingly, it is
insufficient for a party opposing summary
judgment “‘merely to assert a conclusion
without supplying supporting arguments or
facts.’” BellSouth Telecomms., Inc. v. W.R.
Grace & Co., 77 F.3d 603, 615 (2d Cir.

STANDARD OF REVIEW

Pursuant to Federal Rule of Civil
Procedure 56(a), a court may grant a motion
for summary judgment only if “the movant
shows that 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); Gonzalez v. City of Schenectady,
728 F.3d 149, 154 (2d Cir. 2013). The
moving party bears the burden of showing
that he is entitled to summary judgment. See
Huminski v. Corsones, 396 F.3d 53, 69 (2d
Cir. 2005). “A party asserting that a fact
cannot be or is genuinely disputed must
support the assertion by: (A) citing to
particular parts of materials in the record,
including
depositions,
documents,
electronically stored information, affidavits
or declarations, stipulations (including those
made for purposes of the motion only),
admissions, interrogatory answers, or other
materials; or (B) showing that the materials
cited do not establish the absence or
presence of a genuine dispute, or that an
adverse party cannot produce admissible
evidence to support the fact.” Fed. R. Civ. P.
56(c)(1). The court “‘is not to weigh the
evidence but is instead required to view the
evidence in the light most favorable to the
8

1996) (quoting Research Automation Corp.,
585 F.2d at 33).
III.

discrimination occurred within the statutory
time period.” Mark v. Brookdale Univ.
Hosp., No. 04 Civ. 2497(JBW), 2005 WL
1521185, at *16 (E.D.N.Y. June 22, 2005)
(citing Nat’l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 114–15 (2002))
(emphasis in original). This is because
“‘[e]ach incident of discrimination and each
retaliatory adverse employment decision
constitutes a separate actionable unlawful
employment practice.” Id. (quoting Nat’l
R.R. Passenger Corp., 536 U.S. at 114).
However, the Supreme Court has made clear
that the statute does not “bar an employee
from using the prior acts [that are untimely]
as background evidence in support of a
timely claim.” Nat’l R.R. Passenger Corp.,
536 U.S. at 113. Flanagan filed his EEOC
charge on May 26, 2009. (Def. 56.1 ¶ 99.)
Thus, any incidents of sexual harassment
predating July 30, 2008, are time-barred
under Title VII.

DISCUSSION

Defendants
argue
that
summary
judgment should be granted on the sexual
harassment claims (whether as hostile work
environment claims or quid pro quo claims)
because (1) the claims are time-barred; (2)
the acts alleged by Flanagan, even if not
time-barred, do not establish a viable claim
of sexual harassment under Title VII or the
NYSHRL; and (3) even if there were a
viable sexual harassment claim, there is no
basis to impute liability to the Hospital or
NSLIJ. Defendants argue that summary
judgment also should be granted on the
retaliation claim because plaintiff cannot
establish (1) a causal connection between
any protected activity and his termination, or
(2) that any protected activity was the “but
for” cause of his discharge.

It is undisputed that plaintiff’s
consensual relationship with Fischer ended
in 2000. Plaintiff apparently premises his
harassment claim, including his hostile work
environment claim, on the fact that he “felt”
that Fischer wanted to “get back to that point
in the relationship where [they] would
engage in sex,” not any actual actions,
conduct or words used by Fischer.” (Def.
56.1 ¶ 33.) Flanagan admitted at his
deposition, however, that he could not
identify when Fischer last engaged in
allegedly sexually harassing conduct. (See
id. ¶ 35.) Further, at oral argument, when
asked to address this issue, counsel for
plaintiff conceded that he did not know the
date of any alleged harassing conduct, such
as an alleged brushing up against plaintiff in
the elevator with other people (see id. ¶ 34).
Mere conjecture and speculation are not
enough, however, to defeat summary
judgment. See BellSouth Telecomms., 77
F.3d at 615. Accordingly, because there is
no evidence, or even a specific allegation,

A. Harassment Claim—Hostile Work
Environment9
As a threshold matter, the Court
concludes that the hostile work environment
claim is untimely under federal law. An
“aggrieved employee wishing to bring a
Title VII claim in district court must file an
administrative complaint with the EEOC
within 300 days of the alleged
discriminatory act.” Petrosino v. Bell Atl.,
385 F.3d 210, 219 (2d Cir. 2004); 42 U.S.C.
§ 2000e–5(e). Title VII “precludes recovery
for discrete acts of discrimination . . . that
occur outside the statutory time period,
irrespective of whether other acts of
9

In an abundance of caution, although plaintiff’s
counsel suggested at oral argument that the
harassment claim should be analyzed more as a quid
pro quo claim than a hostile work environment claim,
the Court has analyzed the claim under both theories
of liability and concludes, for the reasons discussed
below, that the claim cannot survive summary
judgment under either theory.
9

the terms and conditions of
employment that is actionable under
Title VII. If, however, a claim
involves only unfulfilled threats, it
should be categorized as a hostile
work environment claim which
requires a showing of severe or
pervasive conduct. The terms quid
pro
quo
and
hostile
work
environment are helpful, perhaps, in
making a rough demarcation
between cases in which threats are
carried out and those where they are
not or are absent altogether, but
beyond this are of limited utility.

that any sexual harassment occurred on or
after July 30, 2008, the Court grants
summary judgment to defendants because
the claims are time-barred.
Even assuming arguendo that the hostile
work environment claim was not timebarred, the claim could not survive summary
judgment because no rational jury could
conclude that plaintiff’s vague allegations of
harassment were “sufficiently severe or
pervasive to alter the conditions of the
victim’s employment and create an abusive
working environment.” Harris v. Forklift
Sys., Inc., 510 U.S. 17, 21 (1993); see also
Schiano v. Quality Payroll Sys., Inc., 445
F.3d 597, 608 (2d Cir. 2006) (“There are, of
course, cases in which it is clear to both the
trial court and the reviewing court that after
assessing the frequency of the misbehavior
measured in light of its seriousness, the facts
cannot, as a matter of law, be the basis of a
successful hostile work environment
claim.”). Plaintiff has simply put forth no
evidence from which a rational jury could
find that, after his consensual relationship
with Fischer ended in 2000, he was
subjected to a hostile work environment
based upon his failure to rekindle a
relationship with Fischer.

Schiano, 445 F.3d at 603–04 (internal
quotations and citation omitted). Thus, “to
establish a prima facie case of quid pro quo
harassment, a plaintiff must present
evidence that she was subject to unwelcome
sexual conduct and that her reaction to that
conduct was then used as the basis for
decisions affecting the compensation, terms,
conditions,
or
privileges
of
her
employment.” Karibian v. Columbia Univ.,
14 F.3d 773, 777 (2d Cir. 1994).
Plaintiff appears to be contending, as the
basis for his quid pro quo sex harassment
claim, that he was denied a promotion and
offered a severance package by Fischer
because he refused her sexual advances.
(See Opp’n, at 10 (“When he refused to
submit to her sexual advances to rekindle
the relationship, he was denied a promotion
and offered severance pay by Fischer.”).)
This claim cannot survive summary
judgment for several reasons. First, as noted
supra, there is absolutely no evidence from
which a rational jury could find that Fischer
wanted to rekindle the relationship with
Flanagan after it ended in 2000, as they
continued to work together for years without
incident. There were no alleged sexual
advances by Fischer close in time to the
succession planning in 2008 or the

Accordingly, the harassment claim,
based upon a hostile work environment
theory, cannot survive summary judgment.
B. Harassment Claim—Quid Pro Quo
In addition to the hostile work
environment claim, plaintiff brings a quid
pro quo sexual harassment claim. As the
Second Circuit has explained,
When a plaintiff proves that a
tangible employment action resulted
from a refusal to submit to a
supervisor’s sexual demands, he or
she establishes that the employment
decision itself constitutes a change in
10

also is also insufficient to preclude summary
judgment on this claim. First, nothing
happened as a result of that alleged
reference to a severance package. In other
words, plaintiff was not forced to take a
severance, and there is no evidence the issue
was ever discussed again. Thus, the alleged
conversation did not alter the terms or
conditions of plaintiff’s employment.
Second, no rational jury could find that such
a brief conversation regarding severance is
evidence that plaintiff’s failure to be
promoted was, in any way, connected with a
purported refusal to rekindle a sexual
relationship with Fischer.

termination in 2009. In fact, there are no
specific allegations of sexual advances after
the consensual relationship ended in 2001.
Plaintiff’s vague statement that he “felt”
Fischer wanted to re-kindle the relationship
is insufficient to raise a genuine disputed
fact on this issue. Second, in his deposition,
plaintiff testified that he “never applied for
the position of assistant director nor sought
it. Therefore, I was never disappointed for
Linda not reserving it for me.” (Flanagan
Dep. at 459:10–13.) Thus, given that he
never applied for or sought the position,
there is no basis from which a rational jury
could find that he suffered a change of the
terms and conditions of his employment, in
connection with this failure to get the
promotion, because of his purported refusal
to rekindle the relationship with Fischer.
Third, the decision regarding the succession
planning was made, in part, by the
Executive Vice President of the Hospital
(Hoeft) and the Vice President of
Administration (Quartier), based upon their
own assessment of plaintiff’s inability to
assume a leadership position in the HIS
Department because of his lack of
interpersonal skills. There is no allegation
that they harbored any discriminatory
animus in connection with the promotion
decision, or that their decision had anything
to do with Fischer’s prior relationship with
plaintiff. In short, there is simply no
evidence that plaintiff suffered a tangible
employment action—a significant change in
employment status—as a result of his
“refusal to submit to a supervisor’s sexual
demands.” Mormol v. Costco Wholesale
Corp., 364 F.3d 54, 57 (2d Cir. 2004)
(quoting Burlington Indus., Inc. v. Ellerth,
524 U.S. 742, 753–54 (1998)).

Similarly, to the extent that plaintiff
argues that the termination was quid pro quo
sexual harassment, that claim also fails to
survive summary judgment. As noted infra,
there is uncontroverted evidence of multiple
complaints by employees about plaintiff’s
unprofessional behavior, which resulted in
his termination. Moreover, the President and
Chief Executive Officer of the Hospital
made the termination decision, not Fischer.
Given these uncontroverted facts, no rational
jury could find in plaintiff’s favor in
connection with a quid pro quo claim
allegedly arising from his termination.
C. Retaliation Claim
1. Legal Standard
Title VII prohibits an employer from
firing an employee in retaliation for having
made a charge of discrimination. 42 U.S.C.
§ 2000e-3(a). In the absence of direct
evidence of a retaliatory motive, a Title VII
retaliation claim is subject to the burdenshifting framework established by the
Supreme Court in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See,
e.g., Kirkland v. Cablevision Sys., 760 F.3d
223, 225 (2d Cir. 2014); Kwan v. Andalex
Grp. LLC, 737 F.3d 834, 843 (2d Cir. 2013);
Gorzynski v. JetBlue Airways Corp., 596

To the extent that plaintiff seeks to base
his claim on the alleged informal reference
by Fischer to plaintiff’s possible ability to
obtain some type of severance (after he did
not receive the promotion), that evidence
11

the plaintiff must show “that the unlawful
retaliation would not have occurred in the
absence of the alleged wrongful action or
actions of the employer.” Univ. of Tex. Sw.
Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533
(2013); see, e.g., Kirkland, 760 F.3d at 225;
Kwan, 737 F.3d at 845. “‘[B]ut-for’
causation does not require proof that
retaliation was the only cause of the
employer’s action, but only that the adverse
action would not have occurred in the
absence of the retaliatory motive.” Kwan,
737 F.3d at 846. To meet this burden, the
plaintiff may rely on evidence presented to
establish her prima facie case as well as
additional evidence. Such additional
evidence
may
include
direct
or
circumstantial evidence of discrimination.
Desert Palace, Inc. v. Costa, 539 U.S. 90,
99–101 (2003). It is insufficient, however,
for a plaintiff merely to show that she
satisfies “McDonnell Douglas’s minimal
requirements of a prima facie case” and to
put forward “evidence from which a
factfinder could find that the employer’s
explanation . . . was false.” James v. N.Y.
Racing Ass’n, 233 F.3d 149, 157 (2d Cir.
2000). Instead, the key is whether there is
sufficient evidence in the record from which
a reasonable trier of fact could find in favor
of plaintiff on the ultimate issue, i.e.,
whether the record contains sufficient
evidence “that retaliation was a but-for
cause of the adverse employment action.”
Weber v. City of New York, 973 F. Supp. 2d
227, 271 (E.D.N.Y. 2013).

F.3d 93, 110 (2d Cir. 2010). Under this
framework, a plaintiff must first set forth a
prima facie case of retaliation by showing
that (1) she engaged in a protected activity;
(2) the defendant was aware of that activity;
(3) the plaintiff suffered an adverse
employment action; and (4) there was a
causal connection between the protected
activity and the adverse employment action.
See, e.g., Kwan, 737 F.3d 844; Terry v.
Ashcroft, 336 F.3d 128, 141 (2d Cir. 2003).
If the plaintiff establishes a prima facie case
of retaliation, then the burden shifts to the
defendant-employer to provide a legitimate,
non-retaliatory reason for its actions. See,
e.g., Kirkland, 760 F.3d at 225 (citing
McDonnell Douglas, 411 U.S. at 802). The
Supreme Court has explained the
defendant’s burden as follows:
The defendant need not persuade the
court that it was actually motivated
by the proffered reasons. It is
sufficient if the defendant’s evidence
raises a genuine issue of fact as to
whether
it
discriminated
[or
retaliated] against the plaintiff. To
accomplish this, the defendant must
clearly set forth, through the
introduction of admissible evidence,
the reasons for the [challenged
action].
Tex. Dep’t of Cmty. Affairs v. Burdine, 450
U.S. 248, 254–55 (1981) (internal citation
omitted); see, e.g., Porter v. Potter, 366 F.
App’x 195, 197 (2d Cir. 2010); Farias v.
Instructional Sys., Inc., 259 F.3d 91, 98 (2d
Cir. 2001). Where the defendant articulates
such a reason, “the burden then shifts back
to the plaintiff to show that the employer’s
explanation is a pretext for . . . retaliation.”
Kirkland, 760 F.3d at 225.
Ultimately, because “Title VII retaliation
claims must be proved according to
traditional principles of but-for causation,”
12

Polcari, Smith, or any supervisors on these
evaluations; (2) Quartier disciplined plaintiff
in June 2009 for improper reasons and
shortly after his EEOC complaint; (3) the
Hospital concocted the complaints about the
July 17, 2009 meeting, as evidenced by
Frid’s testimony, Polcari’s retraction during
the deposition, and the audio recording of
the meeting itself; and (4) Lawlor terminated
plaintiff in the process of investigating
plaintiff’s complaint about the July 17
meeting, raising an issue of fact as to
whether he wanted to punish a complaining
employee. (Opp’n, at 16–21.) The Court
concludes that, even construing the evidence
most favorably to plaintiff, no rational jury
could find that plaintiff would not otherwise
have been disciplined and terminated in the
absence of his complaints.

2. Application
a. Prima Facie Case
Defendants argue that plaintiff cannot
establish a prima facie case of retaliation
based on temporal proximity because he
testified that he believes the decision to
terminate his employment in the summer of
2009 was made before he tendered his
February 2, 2009 letter. (See Def. 56.1 ¶ 59.)
However, the Court assumes, for purposes
of the motion, that plaintiff has met the
minimal burden of establishing a prima facie
case and concludes, for the reasons
discussed infra, that there is no evidence
from which a rational jury could find the
legitimate, non-discriminatory reasons for
the termination were a pretext for retaliation.
b. Legitimate, Non-Discriminatory
Reasons

Under Nassar, plaintiff must show that
“the unlawful retaliation would not have
occurred in the absence of the alleged
wrongful action or actions of the employer.”
Nassar, 133 S.Ct. at 2533; see also Stoler v.
Inst. for Integrative Nutrition, No. 13–CV–
1275, 2013 WL 6068598, at * 12 (S.D.N.Y.
Nov. 18, 2013) (“[E]ven under the ‘but-for’
standard articulated in Gross [v. FBL Fin.
Servs., Inc., 557 U.S. 167 (2009)] and
adopted in Nassar Plaintiffs need not show
that retaliation is the only cause of an
adverse action. ‘Instead, an employer may
be held liable under [a but-for standard] if
other factors contributed to its taking an
adverse action, as long as [the protected
characteristic] was the factor that made a
difference.’” (alteration in original) (quoting
Jones v. Okla. City Pub. Sch., 617 F.3d
1273, 1277–78 (10th Cir. 2010) (ADEA
case))). Further, even though temporal
proximity may be enough to establish a
prima facie case of retaliation, it is
insufficient by itself to overcome a nondiscriminatory reason by demonstrating
pretext. See El Sayed v. Hilton Hotels Corp.,
627 F.3d 931, 933 (2d Cir. 2010) (“The

Defendants have satisfied their burden of
setting forth legitimate, nondiscriminatory
reasons for their actions. See Summa v.
Hofstra Univ., 708 F.3d 115, 125 (2d Cir.
2013). Their proffered reasons for
disciplining and terminating plaintiff are his
unsatisfactory performance during his last
year of employment, including his refusal to
complete assigned tasks; disruptive behavior
that impeded the functioning of the HIS
Department; his treatment of Fischer,
especially during the meeting on July 17,
2009; and other employees’ complaints
about his conduct. (See, e.g., Def. 56.1
¶¶ 93–94.) Accordingly, the burden shifts
back to plaintiff to provide evidence from
which a rational jury could find pretext.
c. Pretext
Plaintiff argues that defendants’ reasons
are pretextual because (1) they evaluated his
work performance highly through 2008, and
they never included criticisms regarding his
attitude or conduct from individuals like
13

temporal proximity of events may give rise
to an inference of retaliation for the
purposes of establishing a prima facie case
of retaliation under Title VII, but without
more, such temporal proximity is
insufficient to satisfy appellant’s burden to
bring forward some evidence of pretext.”);
Ragusa v. Malverne Union Free Sch. Dist.,
582 F. Supp. 2d 326, 349–50 (E.D.N.Y.
2008) (temporal proximity alone insufficient
to show reasons were pretext for retaliation).

In addition, although plaintiff claims that
Quartier improperly disciplined him in May
and June 2009 for specious reasons, plaintiff
fails to point to anything other than temporal
proximity to indicate that Quartier actually
disciplined him in retaliation for the
February 2009 or EEOC complaint.
Moreover, “[i]t is well settled that the mere
fact that an employee disagrees with an
employer’s evaluation of that employee’s
misconduct or deficient performance, or
even has evidence that the decision was
objectively incorrect, does not necessarily
demonstrate, by itself, that the employer’s
proffered reasons are a pretext for
termination.” Kalra v. HSBC Bank USA,
N.A., 567 F. Supp. 2d 385, 397 (E.D.N.Y.
2008); see also Soderberg v. Gunther Int’l,
Inc., 124 F. App’x 30, 32 (2d Cir. 2005)
(“[I]t is not the function of a fact-finder to
second-guess business decisions regarding
what
constitutes
satisfactory
work
performance.”);
Iverson
v.
Verizon
Commc’ns, No. 08–CV–8873, 2009 WL
3334796, at *5 (S.D.N.Y. Oct. 13, 2009)
(“Merely disagreeing with a supervisor’s
assessment of work performance, however,
is insufficient to raise a triable issue of fact
regarding pretext”).

The uncontroverted evidence shows that,
before Flanagan engaged in protected
activity in February 2009, he was denied a
promotion because of issues with his
leadership and interpersonal skills. Thus,
individuals at the Hospital had concerns
about plaintiff’s behavior and its impact on
other employees even before he complained
to Lawlor about Fischer. Flanagan’s
emphasis on his performance evaluations
cannot show pretext at least for that reason.
Moreover, the evaluations predate the time
significant issues arose with plaintiff’s
performance, and neither the absence of any
mention of Polcari’s and Smith’s complaints
in a written evaluation nor the absence of the
2008 evaluation itself creates a genuine
issue of disputed fact as to whether
Flanagan’s leadership and interpersonal
skills were unsatisfactory both before and
after he was told he would not become an
Assistant Director. The record also reflects
the seriousness with which the Hospital
treated plaintiff’s February 2009 complaint.
Lawlor and Quartier immediately met with
Flanagan to discuss his allegations, and
Green
conducted
an
independent
10
investigation of the allegations.

Further,
Flanagan’s
claim
that
employees’ complaints about Flanagan’s
behavior and/or the July 2009 staff meeting
were “manufactured” and “fabricated” is
belied by the record.11 Nothing indicates that
11

As a threshold matter, to the extent plaintiff
contends that the secret recording that he made of the
July 17th meeting supports his position that any
complaints about his unprofessional behavior at the
meeting were without merit, the Court completely
disagrees. Having carefully reviewed the recording
submitted by plaintiff, it is clear to the Court that
there were a number of tense exchanges during which
plaintiff used what can only be characterized as an
annoyed, condescending, disrespectful and/or rude
tone in speaking to his supervisor, Fischer, during the
meeting. Based upon both the tone and the substance
of his comments to Fisher, plaintiff clearly was

10

As noted supra, the fact that some of the quotes
Green attributed to Lawlor were incorrect does not
raise a genuine issue as to whether the sum and
substance of her findings were inaccurate.
14

the exchanges between Flanagan and
Fischer, or the numerous complaints from
other employees about how Flanagan
generally treated them and Fischer, were
manufactured or contrived, much less in a
way to enable defendants to retaliate against
Flanagan. For instance, plaintiff points to no
evidence that Fischer or the other

complaining employees knew of the EEOC
charge.
More
importantly,
it
is
uncontroverted
that
the
employees
complained to supervisors such as Lawlor
about plaintiff’s behavior (including in
contemporaneous emails that memoralized
their complaints), and several of the
employees have submitted declarations
reaffirming their recollection of the events at
issue. (See, e.g., Lombardi Decl. ¶¶ 4–6
(“By 2008, and for the last year or so of his
employment, I generally tried to avoid
dealing with Mr. Flanagan, going around
him on projects to work with other members
of the HIS Department whenever possible. I
did this because his behavior had started to
change for the worse. While previously he
had been approachable, at least, he became
increasingly
unapproachable
and
disinterested; or, if I had a disagreement
with him, he would insist that he was right
no matter what I said to him. As a result,
Mr. Flanagan’s conduct created a lot of
unnecessary stress for me and the rest of the
employees in the HIS Department. At the
end of 2008 or beginning of 2009, I learned
that two new Assistant Director positions
had been created in the Department and
John Kaziun and Lil McAlpin had been
promoted to those positions. After that, Mr.
Flanagan’s already difficult behavior
became even worse. He was abrupt and
angry. He seemed to be pouting. During
staff meetings and project meetings, he
would ask a lot of questions that were not
really relevant; he would nit-pick issues
endlessly. He seemed to be doing this just to
stir the pot. Or, at other times, he just would
not answer questions at all. It became
uncomfortable. As a result, everyone would
be on edge whenever he was around. It was
a difficult environment to work in.”);
McAlpin Decl. ¶ 5 (“Toward the end of his
employment, and especially after Mr.
Kaziun and I were promoted to the new
Assistant Director positions, Mr. Flanagan’s

challenging her competency and/or authority, in front
of other employees, during multiple exchanges in the
meeting. (See, e.g., Meeting Tr., Docket No. 59-12, at
17–18 (“MR. FLANAGAN: All right. Can you
please -- I’ll resend this. I’ll resend this. Just edit it so
that I have something clear and concise to work with.
And I have very specific parameters I can use to
build this.”); id. at 18 (“MR. FLANAGAN: They
shouldn’t have done that. They should have talked to
me or asked a little bit more information about it.”);
id. at 19 (“MR. FLANAGAN: All right. I’m going to
resend this. I may add some more stuff. Do not get
upset if I write back to you and say I need a little bit
more clarification for what it is you’re doing.”); id. at
20 (“MR. FLANAGAN: All right. I just -- I don’t
understand why you just couldn’t have given me
something to work with in this email that we sent
back in what was it, June. I’m already a month
behind on this. I could have at least started with
something and gotten some proposals. We’ve wasted
already four weeks.”); id. at 21 (“MR. FLANAGAN:
All right, all right. Can we at least agree we have had
no serious discussions about this? MS. FISCHER:
No, I’m not agreeing to anything. I -- It’s been on
every time we had a staff meeting, it was brought up.
MR. FLANAGAN: What? But we never discussed
exactly what it is we were going to do with it. We
only had this vague -- MS. FISHER: Let’s move on.
You’re right. Let’s move on.”); id. at 42 (“MR.
FLANAGAN: . . . And, you know, it’s just an idea,
but I don’t want to spend hours working on this and
then get yelled at for not working on something else
unless I have the go ahead to look into it.”).) No
rational jury could conclude that plaintiff acted in a
professional manner towards his supervisor during
that meeting. In any event, even assuming arguendo
that the recording supported plaintiff’s position, it is
still uncontroverted that multiple employees made
contemporaneous complaints about plaintiff to
management about his unprofessional behavior at the
meeting (and in other contexts). There is absolutely
no evidence that management had any reason to
disbelieve those complaints, and no evidence that the
defendant’s decision to terminate plaintiff based upon
those complaints was a pretext for retaliation.
15

meetings, I witnessed Mr. Flanagan go into
tirades toward other employees who, he
believed, had questioned his authority by
suggesting that something be done in a
better or different way. He was particularly
hard on Steve Smith and Mike Bizzaro, and
I witnessed him treat both of those
employees
in
a
demeaning
and
contemptuous manner. Over the course of
time, Mr. Flanagan was argumentative with
numerous people in the Department,
including Linda Fischer, but in the last few
months of his employment, most of his
animosity was targeted at Ms. Fischer. His
behavior seemed irrational. It got to the
point
where
I
dreaded
attending
departmental meetings, wondering what Mr.
Flanagan would do to make the meeting
uncomfortable. Yet, whenever Mr. Flanagan
would engage in disrespectful tirades against
Ms. Fischer, I never saw her fight back or
respond in kind.”); Kaziun Decl. ¶¶ 4, 6 (“At
times Mr. Flanagan was not easy to work
for, but our work relationship during the
years that [sic] reported to his was fine. . . .
After the Assistant Director promotions
were
announced,
Mr.
Flanagan’s
performance and attitude changed quite a
lot. His attendance deteriorated – he took
more days off than he had in the past, and
often left work early. He started making it
more difficult to get work done in the HIS
Department, often insisting on written
confirmation from Ms. Fischer regarding
what he was supposed to work on, and
asking long lists of unnecessary questions
about projects, refusing to work on them
until he received answers. He became
increasingly short-tempered. There were
several
times
when
he
became
confrontational toward Ms. Fischer, and I
took him aside and tried to calm him down.
On the whole, it became very unpleasant
work [sic] with him.”).) In sum, although
plaintiff disputes the accuracy of these
complaints, plaintiff does not controvert the

behavior
and
performance
became
increasingly difficult. I remember always
being on edge in his presence, because you
never knew when he was going to say
something insulting.”); Smith Decl. ¶¶ 3, 11,
15 (“Mr. Flanagan persecuted me the whole
time I worked for him. He was vindictive
and carried grudges for years. He was very
controlling and, as the HIS Department grew
in size, increasingly showed that he could
not stand the thought of things happening in
the Department without his approval and
control. He would try to assert his authority
over projects he did not supervise, and this
directly interfered with my work. He seemed
determined to make life difficult for me at
the Hospital. . . . Mr. Flanagan’s behavior
became even more obstructive in 2009, after
two new Assistant Director positions were
created in the Department, and John Kaziun
and Lil McAlpin were promoted to them. . .
. I was relieved when Mr. Flanagan’s
employment was terminated. Things were
much better within the HIS Department after
he left the Hospital – the tension was gone,
and the Department worked well together as
a team again.”); Clayton Decl. ¶ 4 (“On
Monday July 20, 2009, I sent an email to
John Kaziun, Assistant Director of the
Department, expressing my views about Mr.
Flanagan’s behavior within the HIS
Department in general and during the staff
meeting on July 17 2009 in particular.
Among other things, I wrote that Mr.
Flanagan’s attitude had caused unneeded
stress in the HIS Department; that I was
uncomfortable talking about issues because
he would become defensive; that his
negative feelings toward Linda Fischer and
the Hospital’s Administration were clearly
evident in his words and actions; and that he
was detracting from the team environment
we had in the HIS Department.”); Theal
Decl. ¶¶ 4–5 (“Mr. Flanagan’s attitude was
that things were ‘his way, or no way.’ In
numerous
departmental
and
project
16

clear evidence that these complaints were
made, and there is no evidence that these
employees fabricated these complaints in
retaliation for protected activity by plaintiff.

the investigation with all the people
who were at the meeting and a series
of Ed’s performance over a number
of months.

Lastly, although plaintiff attempts to
show pretext because Lawlor suspended and
terminated plaintiff after he complained,
engaging in protected activity is not a
license for an employee to stop doing his or
her job, nor does it immunize that employee
against termination or other adverse
employment actions for unprofessional or
insubordinate behavior. See Pulley v. KPMG
Consulting, Inc., 348 F. Supp. 2d 388, 397
(D. Md. 2004) (“The sword of an EEOC
complaint cannot be used as a shield to
protect an employee from the consequences
of
inappropriate
behavior
that
is
incontrovertibly below the reasonable
expectations of his employer. This is
especially the case, where as here, the
conduct in question was of the same
inappropriate nature both before and after
the protected activity. Pulley’s complaint
may have been protected legally, but he was
not at liberty to misbehave as a result.”); see
also Brown v. Ralston Purina Co., 557 F.2d
570, 572 (6th Cir. 1977) (“[A]n EEOC
complaint creates no right on the part of an
employee to miss work, fail to perform
assigned work, or leave work without
notice.”). In fact, Lawlor testified,

(Lawlor Dep. at 152.) In short, in the face of
the uncontroverted evidence of the
complaints by numerous employees about
plaintiff in the summer of 2009, plaintiff
offers no evidence from which a rational
jury could instead find that Lawlor’s
business decision to terminate plaintiff
based upon those numerous complaints
(whether correct or not) was motivated by
retaliatory animus arising from plaintiff’s
protected activity several months earlier.
See, e.g., McPherson v. N.Y.C. Dep’t of
Educ., 457 F.3d 211, 216 (2d Cir. 2006) (“In
a discrimination case . . . we are decidedly
not interested in the truth of the allegations
against plaintiff. We are interested in what
‘motivated the employer . . . .’” (quoting
U.S. Postal Serv. Bd. of Governors v.
Aikens, 460 U.S. 711, 716 (1983)); Nix v.
WLCY Radio/Rahall Commc’ns, 738 F.2d
1181, 1187 (11th Cir. 1984) (stating that an
“employer may fire an employee for a good
reason, a bad reason, a reason based on
erroneous facts, or for no reason at all, as
long as its action is not for a discriminatory
reason”); Koleskinow v. Hudson Valley
Hosp. Ctr., 622 F. Supp. 2d 98, 111
(S.D.N.Y. 2009) (“Where a plaintiff has
been terminated for misconduct, the
question is not ‘whether the employer
reached a correct conclusion in attributing
fault [to the plaintiff] . . . , but whether the
employer made a good-faith business
determination.’”
(quoting
Baur
v.
Rosenberg, Minc, Falkoff & Wolff, No. 07Civ.-8835, 2008 WL 5110976, at *5
(S.D.N.Y. Dec. 2, 2008))).

What prompted me to suspend Ed
Flanagan was the visit by Steve
Smith, the visit by Linda Fischer;
and, particularly, Steve Smith letting
me [know] what was going on in the
[department] and how this whole
department was falling apart very
quickly; and that Linda Fischer was
very upset; we could potentially lose
her. I needed to [do] what was right
for the hospital . . . . What prompted
th[e] decision [to turn the suspension
into a termination] was the result of

For these reasons, even construing the
evidence most favorably to plaintiff, no
rational jury could find that defendants’
decision to discipline and terminate him was
17

supplemental jurisdiction’” over plaintiff’s
state law claims because “it ‘has dismissed
all claims over which it has original
jurisdiction.’” Kolari v. N.Y.-Presbyterian
Hosp., 455 F.3d 118, 122 (2d Cir. 2006)
(quoting 28 U.S.C. § 1367(c)(3)); see also
Cave v. E. Meadow Union Free Sch. Dist.,
514 F.3d 240, 250 (2d Cir. 2008) (“We have
already found that the district court lacks
subject matter jurisdiction over appellants’
federal claims. It would thus be clearly
inappropriate for the district court to retain
jurisdiction over the state law claims when
there is no basis for supplemental
jurisdiction.”); Karmel v. Claiborne, Inc.,
No. 99 Civ. 3608, 2002 WL 1561126, at *4
(S.D.N.Y. July 15, 2002) (“Where a court is
reluctant
to
exercise
supplemental
jurisdiction because of one of the reasons
put forth by § 1367(c), or when the interests
of judicial economy, convenience, comity
and fairness to litigants are not violated by
refusing to entertain matters of state law, it
should decline supplemental jurisdiction and
allow the plaintiff to decide whether or not
to pursue the matter in state court.”).

a pretext for retaliation. Accordingly, the
Court grants defendants’ motion for
summary judgment on the federal retaliation
claim. See, e.g., Kaur v. N.Y.C. Health &
Hosps. Corp., No. 07 Civ. 6175(LAP), 2010
WL 649284, at *20 (S.D.N.Y. Feb. 19,
2010) (granting motion for summary
judgment on retaliation claim where plaintiff
“failed to offer evidence from which a
reasonable fact-finder could conclude that
her treatment by Defendant was motivated
by retaliatory animus . . . [and] failed to link
any action on behalf of Defendant to a
retaliatory motivation”); Fleming v.
MaxMara USA, Inc., 644 F. Supp. 2d 247,
269–70 (E.D.N.Y. 2009) (granting motion
for summary judgment on retaliation claim
where plaintiff “cannot rebut defendants’
legitimate,
non-discriminatory
reasons
proffered for their actions through evidence
that the reasons are pretextual, or that
retaliatory animus was nevertheless a
motivating factor”).
D. State Law Claims
Plaintiff also asserts claims under New
York law. Having determined that the
federal claims do not survive summary
judgment, the Court concludes that retaining
jurisdiction over any state law claims is
unwarranted. See 28 U.S.C. § 1367(c)(3);
United Mine Workers of Am. v. Gibbs, 383
U.S. 715, 726 (1966). “In the interest of
comity, the Second Circuit instructs that
‘absent exceptional circumstances,’ where
federal claims can be disposed of pursuant
to Rule 12(b)(6) or summary judgment
grounds, courts should ‘abstain from
exercising pendent jurisdiction.’” Birch v.
Pioneer Credit Recovery, Inc., No. 06-CV6497T, 2007 WL 1703914, at *5 (W.D.N.Y.
June 8, 2007) (quoting Walker v. Time Life
Films, Inc., 784 F.2d 44, 53 (2d Cir. 1986)).

Accordingly, pursuant to 28 U.S.C.
§ 1367(c)(3), the Court declines to retain
jurisdiction over the remaining state law
claims given the absence of any federal
claims that survive summary judgment.

Therefore, in the instant case, the Court,
in its discretion, “‘decline[s] to exercise
18

IV.

CONCLUSION

For the foregoing reasons, the Court
grants defendant’s motion for summary
judgment as to the federal claims. The Court
declines
to
exercise
supplemental
jurisdiction over the state law claims and,
thus, dismisses such claims without
prejudice. The Clerk of the Court shall enter
judgment accordingly and close this case.
SO ORDERED.

_______________________
JOSEPH F. BIANCO
United States District Judge
Dated: September 30, 2014
Central Islip, NY
***
Plaintiff is represented by Raymond Nardo,
129 Third Street, Mineola, NY 11501.
Defendants are represented by Traycee Ellen
Klein, John Francis Fullerton, and John
Houston Pope of Epstein Becker & Green,
P.C., 250 Park Avenue, New York, NY
10177-1211.

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