Setelius v. National Grid Electric Services LLC et al
Filing
48
ORDER granting 28 Motion for Summary Judgment. For the reasons set forth in the attached Memorandum and Order, the Court grants defendants' motion for summary judgment as to all claims. The Clerk of Court is directed to close this case. Ordered by Judge Margo K. Brodie on 9/24/2014. (Prakash, Swati)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------LOUISE SETELIUS,
Plaintiff,
MEMORANDUM & ORDER
11-CV-5528 (MKB)
v.
NATIONAL GRID ELECTRIC SERVICES LLC
and HANK DELACH, in his official and individual
capacities,
Defendants.
--------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Plaintiff Louise Setelius brings this action against Defendants National Grid Electric
Services LLC (“National Grid”) and Hank Delach, alleging claims of gender discrimination,
retaliation and creation of a hostile work environment in violation of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), the New York State Human Rights Law,
N.Y. Exec. Law § 290 et seq. (“NYSHRL”), and violations of the Equal Pay Act, 29 U.S.C.
§ 206(d). Defendants moved for summary judgment as to all claims. The Court heard oral
argument on September 16, 2014. For the reasons set forth below, the Court grants Defendants’
motion for summary judgment.
I.
Background
a.
Plaintiff’s work with National Grid and supervision by Delach
Plaintiff began her employment with Long Island Lighting Company, a predecessor to
National Grid, in 1986. (Def. 56.1 ¶ 1; Pl. 56.1 ¶ 1.) Plaintiff began working as a clerk in the
tree trim department, was promoted to work coordinator in 2001, and to field supervisor in 2004.
(Def. 56.1 ¶¶ 1–2; Pl. 56.1 ¶¶ 1–2.) At the time Plaintiff was promoted to field supervisor, she
did not have a college degree, prior relevant supervisory experience, and had not worked in the
field. (Def. 56.1 ¶ 40; Pl. 56.1 ¶ 40.) Her salary was increased by $3,350 from her base pay of
$57,800 as a work coordinator, based on “merit and market forces.” (Def. 56.1 ¶ 42; Pl. 56.1
¶ 42.)
In or about November 2008, Hank Delach became Plaintiff’s supervisor and remained
Plaintiff’s supervisor until January 2011. (Deposition of Louise Setelius, annexed to Affidavit of
Louse Setelius (“Setelius Aff.”) as Ex. 1 (“Pl. Dep.”) 19:24–20:9.) According to Plaintiff,
Delach was “nasty” to her, and would yell and scream at her in front of other employees. (Id. at
105:2, 106:2–14.) Delach also “criticized, belittled, and nitpicked minor details” about
Plaintiff’s work on a “near daily basis,” making “baseless” assertions that Plaintiff was
“incompetent” and “an idiot,” and that her “work [wa]s all wrong” or she “ha[d]n’t done her
job.” (Setelius Aff. ¶ 7.) During monthly safety meetings, Delach would “single[] out” Plaintiff
to make sure the food was there on time, make copies, and “make sure any kind of clerical
function” was done, “because . . . that was [her] job beforehand.” (Pl. Dep. 116:19–25.) Delach
did not ask male field supervisors to perform these tasks. (Id. at 116:24–25.) Delach excluded
Plaintiff from informal and formal meetings with safety supervisors that male field supervisors
attended, and did not update Plaintiff with the decisions made at these meetings, although he
updated male field supervisors. (Setelius Aff. ¶ 3.) Delach also did not distribute to Plaintiff the
minutes of monthly meetings that were held between management (at Delach’s level) and union
employees concerning work methods, incidents and accidents, although he emailed the minutes
to male field supervisors. 1 (Id. ¶ 4.)
1
Neither Delach nor Plaintiff were asked about or discussed the alleged exclusion by
Delach of Plaintiff from these meetings during their deposition testimony.
2
On March 6, 2009, Delach spoke with Plaintiff about her job performance, criticized
Plaintiff’s performance and suggested that she apply for a position that would be a demotion.
(Id. ¶ 9.) In February 2009, National Grid posted an internal announcement for a work
coordinator position in the Hicksville office, and Plaintiff applied for the position in March 2009.
(Def. 56.1 ¶¶ 36–37; Pl. 56.1 ¶¶ 36–37; Pl. Dep. 205:11–12.) According to Plaintiff, she applied
for the position, even though it was technically a demotion, because she did not like the way she
was being treated by Delach in her field supervisor position. (Pl. Dep. 205:11–207:2; Compl. ¶
24.) National Grid interviewed a total of 17 candidates, but did not fill the vacancy and instead
closed the position. (Def. 56.1 ¶¶ 37, 39; Pl. 56.1 ¶¶ 37, 39.) Plaintiff concedes that the position
was closed, but contends that “they moved Paul Turner,” a work coordinator, into the Hicksville
office in December 2009. (Pl. Dep. 206:7–13.)
In December 2010, Plaintiff sought permission from Delach to attend a women’s
conference sponsored by National Grid in Boston, Massachusetts. (Id. at 91:7–25.) Delach
denied Plaintiff permission to attend due to budgetary restrictions. (Id. at 92:2–17.)
According to Plaintiff, as a result of a medical condition, she was required to see a doctor
every three to four months to have her blood drawn. (Setelius Aff. ¶ 6.) The doctor’s office was
located approximately 30 minutes away from her office, and received patients only during
normal business hours. (Id.) Delach complained about Plaintiff leaving work to make these
doctor’s appointments, and asked her to find a doctor located closer to the office. (Id.) In
contrast, Delach did not complain about another field supervisor, Sal Marinello, when Marinello
left work for doctor’s appointments approximately twice per month, even though these visits
often resulted in Marinello’s absence from the office for the entire afternoon. (Id. ¶¶ 3, 6.)
3
Delach also permitted Marinello to leave early approximately two to three additional times each
month to attend to personal business, without comment or reprimand. (Id. ¶ 6.)
b.
Plaintiff’s complaints about Delach
In March 2009, Plaintiff spoke with Joe Dwyer, a supervisor in charge of health and
safety, and informed him that she “was having problems with” Delach “and the way [she] was
being treated.” (Pl. Dep. 114:3–8.) Plaintiff told Dwyer, “I had never been treated by any
employee in the company like that. I didn’t deserve to be treated like that. I was an employee. I
was a human being and I was being treated like dirt.” (Id. at 113:4–114:8.) Plaintiff discussed
“the way I was spoken to, the way I was yelled at, the way I was yelled at in front of my fellow
employees.” (Id. at 115:6–8.)
Plaintiff spoke with Dwyer again in late 2009 or early 2010 about the “same set of
circumstances, . . . the unnecessary yelling.” (Id. at 119:15–18.) On both occasions Dwyer
informed Plaintiff that he would speak with Delach. (Id. at 118:8–12, 119:21–120:4.)
In mid-2009, Plaintiff “in passing, mentioned” to Rich Hohlman, a vice president in
National Grid, that she “was having problems with [her] supervisor.” (Setelius Aff. ¶ 14; Pl.
Dep. 111:15–112:17.) Hohlman “acknowledged” Plaintiff and Plaintiff did not speak to
Hohlman again after that encounter. (Pl. Dep. at 112:4–9.)
c.
Conduct of co-workers
According to Plaintiff, on an unspecified date, Paul Mondello, a fellow field supervisor,
screamed and yelled at Plaintiff over the telephone in an “unprofession[al]” and “abominable”
manner. (Pl. Dep. 196:12–198:4.) Plaintiff called Mondello’s supervisor, Pete Zarcone, and said
“I’m not going to tolerate this behavior. He is treating me as if I’m some kind of insignificant
4
insubordinate piece of garbage. I’m not going to tolerate it. If I was [a] man, he wouldn’t be
yelling at me. He feels he could yell at me because I was a woman.” (Id. at 198:4–10.)
Plaintiff states that in September and November 2010, James Luckie, another fellow male
field supervisor, told her “I would like to touch your butt,” or “I want to put my hands on your
butt.” (Setelius Aff. ¶ 15.) In September 2010, Delach, Luckie and another co-worker, Albert
Carlon, commented on a female co-worker’s breasts in Plaintiff’s presence, “Oh, I’d like to see
those,” and “I’d like to rub those,” which made Plaintiff uncomfortable. 2 (Id. ¶ 16.)
d.
Installation of underground power lines at Plaintiff’s home
According to Plaintiff, in May 2009, Albert Carlon, a work coordinator who supervised
the installation of underground electrical lines for National Grid, told Plaintiff that his workers
were installing underground electrical lines near her home, and suggested that the lines could be
installed at her house if she desired. (Setelius Aff. ¶ 10.) According to Defendants, customers
were charged $2,000 for the installation of underground electrical service at their homes.
(Affidavit of Christopher Dorsey, annexed to Defs. Notice of Motion for Summary Judgment at
Docket Entry No. 32 (“Dorsey Aff.”) ¶ 12.) Plaintiff agreed to have the underground lines
installed, and expected that she would receive a bill for the service. (Setelius Aff. ¶ 10.) The
underground lines were installed by an independent contractor working on behalf of National
Grid, and, according to Plaintiff, she did not have the authority to generate the work order that
was required to install the underground lines or to direct the contractor to perform the work.
(Id.)
On or about May 9, 2009, National Grid received an anonymous complaint that Plaintiff
used a National Grid contractor to install an underground electrical service at her personal
2
Plaintiff does not allege that she complained about these comments.
5
residence, without paying for the installation. 3 (Def. 56.1 ¶ 8; Pl. 56.1 ¶ 8; untitled notes
annexed to Setelius Aff. as Ex. 11 (“Investigation Notes”) at 4.) 4 National Grid’s Standards of
Conduct provide that all employees must avoid situations that create “even the appearance of
impropriety,” cannot “use their positions [and the] opportunities discovered through their
position, and company resources . . . for personal gain,” and must “protect company resources
you work with or are responsible for.” (Def. 56.1 ¶ 6; Pl. 56.1 ¶ 6; Dorsey Aff. ¶ 8; National
Grid Standards of Ethical Business Conduct (“Standards of Conduct”), annexed to Dorsey Aff.
as Ex. 1 at 8.)
e.
Investigation of underground power lines at Plaintiff’s home
In May 2009, Christopher Dorsey, a lead analyst in the National Grid ethics and
compliance office, and Kevin McConnell, a lead program manager in the human resources
department, commenced an investigation into the allegation. According to the Investigation
Notes kept by Dorsey and/or McConnell, a site visit by the Revenue Protection department
confirmed that there was an underground electrical service installed at Plaintiff’s home, which
had not been energized. (Investigation Notes 1.)
In June 2010, Dorsey, and McConnell met with Plaintiff to question her about these
allegations. (Dorsey Aff. ¶ 11.) According to Defendants, during the interview Plaintiff
admitted to having used a National Grid contractor to install the underground electrical lines, and
3
According to the deposition testimony of Richard Romano, a principal partner at
National Grid, the call was received on a hotline that was available only to National Grid
employees. (Deposition of Richard Romano, annexed to Setelius Aff. as Ex. 3 (“Romano Dep.”)
17:9–18:15.)
4
These notes are annexed to Plaintiff’s Affidavit as Exhibit 11. The notes do not include
a title, description or the name of the author. Plaintiff refers to these as “notes taken during the
investigation.” (Pl. Opp’n Mem. 15.) Defendants do not dispute the authenticity or reliability of
these documents.
6
also admitted that she did not pay for the installation or make inquiries about the bill for the
installation. (Id. ¶ 11.) According to Plaintiff, she told Dorsey and McConnell that she had not
sent the crew to her house, that she did not supervise underground crews and did not have the
authority to direct the installation. (Pl. 56.1 ¶ 11; Pl. Dep. 37:22–38:14.) Plaintiff told them that
Carlon had arranged for the installation of the underground lines. (Def. 56.1 ¶ 13; Pl. 56.1 ¶ 13.)
At the end of the meeting, Plaintiff told Dorsey and McConnell that she had thought she was
being called into the meeting to discuss Delach’s conduct toward her, but the investigators did
not respond to this statement. (Pl. 56.1 ¶ 10; Pl. Dep. 42:4–43:5, 52:8–24; Setelius Aff. ¶ 12.)
Dorsey and McConnell subsequently questioned Carlon who denied having any
involvement in the installation of the underground power lines in Plaintiff’s home. (Dorsey Aff.
¶ 13.) Carlon initially stated that he had not had any discussions with Plaintiff regarding any
electrical work at her house, but subsequently recalled that “he did discuss with her the idea of
going to underground service, [and] said sure why not go to underground service.” 5
(Investigation Notes at 4.) Carlon told Dorsey and McConnell that he did not send a crew to
Plaintiff’s house or street, and that Plaintiff had access to the independent contractor crews and
could divert them. (Id.) Carlon also acknowledged that “we do things for employees all the
time,” but that “no other employee ha[d] come to him to initiate an underground service.” (Id.)
In a subsequent section titled “Observations,” the author of the Investigation Notes wrote that
“Carlon acknowledged that there are certain types of work that is done for employees at their
request, perhaps quicker th[a]n it would happen for a customer — transformer replacement,
leaning pole, service line relocation.” (Id. at 7.)
5
The notes state: “[Plaintiff] was having work done at her house and that’s why the
discussion took place. [Carlon] has underground service and [Plaintiff] has been to [Carlon’s]
house in Levittown.” (Dorsey Investigation Notes 4.)
7
Dorsey and McConnell interviewed Plaintiff again in August 2010, during which
interview Plaintiff stated that other National Grid employees had underground electrical service
installed at their homes. (Dorsey Aff. ¶ 11.) According to Plaintiff, when she “asked if Human
Resources spoke with Carlon, who [Plaintiff] had previously indicated had suggested [Plaintiff]
have the lines installed at his own home,” Plaintiff was told that “Carlon said [Plaintiff] was ‘a
liar.’” (Setelius Aff. ¶ 13.) According to the Investigation Notes, Plaintiff said that she was
“99% certain that it was Asplundh [a National Grid contractor] who did the work since they are
the only contractor who does this type of work for us,” but that she was not present for the work,
did not sign any paperwork, and did not direct a crew to perform the work. (Investigation Notes
5.) Plaintiff again stated that she had a conversation with Carlon about underground service, and
that Carlon mentioned that he could get the work done “if someone was going to be over in the
area.” (Id.) Plaintiff believed that when the work was completed she thanked Carlon, that she
anticipated getting a bill for the work at some point, and that the underground wiring had never
been connected to the home, or “energized.” (Id. at 5–6.) The “Observations” section of the
Investigation Notes concluded “[t]he work order process was circumvented; an employee
derived a benefit at no cost wherein such benefit is available to the public but only at a cost.”
(Id. at 6.)
f.
Installation of underground power lines at co-worker’s home
According to Plaintiff, during her August 2010 conversation with Dorsey and
McConnell, she named Carlon as an employee that Plaintiff was aware had underground lines
installed at his home, but was not able to name any other such employees. (Setelius Dep. 56:21–
57:6.) According to Dorsey, Plaintiff “refused to provide” the names of any National Grid
employee who also had underground electrical service installed at their homes. (Dorsey Aff. ¶¶
8
14–15.) As a result, Dorsey and McConnell conducted “spot checks of other management
employees who were peers” of Plaintiff, but were unable to substantiate Plaintiff’s allegations.
(Def. 56.1 ¶¶ 17–18; Dorsey Aff. ¶ 15.) According to the deposition testimony of Richard
Romano, 6 when Dorsey and McConnell provided him with an update regarding the investigation
in late 2010 or early 2011, Romano learned that Carlon was investigated because he had an
underground electrical service at his home, and “he was referred to somewhere in the
investigation” of Plaintiff. (Deposition of Richard Romano, annexed to Setelius Aff. as Ex. 3
(“Romano Dep.”) 20:3–23.) According to Dorsey, during the course of the investigation “it
came to [their] attention that another employee, Albert Carlon, also had an underground
electrical service at his residence.” (Reply Affidavit of Christopher Dorsey, annexed to Def.
Notice of Motion at Docket Entry No. 41 (“Dorsey Reply Aff.”) ¶ 3.) National Grid commenced
an investigation in or about late 2010 to determine whether Carlon had violated National Grid
ethics policy. (Id. ¶ 4.) The investigation revealed that Carlon had two separate underground
electrical services installed at his residence, one that supplied electricity to the main house, and a
separate one that supplied a “cabana” on the property. (Id. ¶ 5.) Carlon admitted to internal
investigators that he had an underground electrical service installed at his residence, but stated
that no National Grid crews or contractors were used to install either of the services, and that he
had installed the underground service himself with a personal friend and family member. (Id. ¶
7.) Carlon explained that “he had used a private electrician not affiliated with the Company to
install the underground service to the cabana.” (Id.) The National Grid investigation “did not
reveal any records or information to dispute Mr. Carlon’s explanation regarding the manner in
6
Romano was the “electrical business partner” representative to the human resources
department for National Grid at the time. (Romano Dep. at 7:3–16.)
9
which the underground services at his residence were installed.” (Id. ¶¶ 7–8.) As a result of
their investigation, National Grid concluded that Carlon had not violated any company ethics
policies. (Id. ¶ 9.)
g.
Plaintiff’s termination
As a result of their investigation into Plaintiff, Dorsey and McConnell concluded that
Plaintiff had violated the company’s Standards of Conduct by using a National Grid contractor to
install an underground electrical service at her home without paying for the installation. (Def.
56.1 ¶ 19; Pl. 56.1 ¶ 19; Dorsey Aff. ¶ 16.) Dorsey and McConnell advised Thomas Beisner, the
Director of Electrical Service for National Grid, and Richard Romano of their conclusion. (Def.
56.1 ¶ 20; Pl. 56.1 ¶ 20; Dorsey Aff. ¶ 16.) Beisner and Romano determined that Plaintiff’s
conduct constituted a serious violation of the company’s Standards of Conduct. (Def. 56.1 ¶ 21;
Pl. 56.1 ¶ 21.) Beisner and Romano met with Plaintiff on February 10, 2011, and terminated her
employment. (Def. 56.1 ¶ 22; Pl. 56.1 ¶ 22.) At the time of her termination, Plaintiff was
earning an annual base salary of $91,960. (Def. 56.1 ¶ 43; Pl. 56.1 ¶ 43.)
II. Discussion
a.
Standard of Review
Summary judgment is proper only when, construing the evidence in the light most
favorable to the non-movant, “there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Bronzini v. Classic
Sec., L.L.C., 558 F. App’x 89, 89 (2d Cir. 2014); Kwan v. Andalex Grp. LLC, 737 F.3d 834, 843
(2d Cir. 2013); Kwong v. Bloomberg, 723 F.3d 160, 164–65 (2d Cir. 2013); Redd v. N.Y. Div. of
Parole, 678 F.3d 166, 174 (2d Cir. 2012). The role of the court is not “to weigh the evidence
and determine the truth of the matter but to determine whether there is a genuine issue for trial.”
10
Cioffi v. Averill Park Cent. Sch. Dist. Bd. of Educ., 444 F.3d 158, 162 (2d Cir. 2006) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). A genuine issue of fact exists when
there is sufficient “evidence on which the jury could reasonably find for the plaintiff.”
Anderson, 477 U.S. at 252. The “mere existence of a scintilla of evidence” is not sufficient to
defeat summary judgment; “there must be evidence on which the jury could reasonably find for
the plaintiff.” Id. The court’s function is to decide “whether, after resolving all ambiguities and
drawing all inferences in favor of the non-moving party, a rational juror could find in favor of
that party.” Pinto v. Allstate Ins. Co., 221 F.3d 394, 398 (2d Cir. 2000). The Second Circuit has
cautioned that ‘[w]here an employer acted with discriminatory intent, direct evidence of that
intent will only rarely be available, so affidavits and depositions must be carefully scrutinized for
circumstantial proof which, if believed, would show discrimination.’” Taddeo v. L.M. Berry &
Co., 526 F. App’x 121, 122 (2d Cir. 2013) (quoting Gorzynski v. JetBlue Airways Corp., 596
F.3d 93, 101 (2d Cir. 2010)).
b.
Discrimination claims against National Grid — Title VII and NYSHRL
Plaintiff claims that National Grid discriminated against her on the basis of gender in
violation of Title VII and the NYSHRL. 7 (Compl. ¶¶ 43, 45.) Title VII prohibits an employer
from discriminating “against any individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual’s race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e–2(a)(1). Thus, “[a]n employment decision . . . violates Title VII
when it is ‘based in whole or in part on discrimination.’” Holcomb v. Iona College, 521 F.3d
130, 137 (2d Cir. 2008) (quoting Feingold v. New York, 366 F.3d 138, 152 (2d Cir. 2004)).
7
Plaintiff’s claim of individual liability against Delach pursuant to the NYSHRL is
analyzed infra in section II.f.
11
Title VII discrimination claims are assessed using the burden-shifting framework
established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 8
See e.g., St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993); Texas Dep’t of Cmty Affairs
v. Burdine, 450 U.S. 248, 253–55 (1981); Demoret v. Zegarelli, 451 F.3d 140, 151 (2d Cir. 2006)
(applying burden shifting framework to gender discrimination claim). Under the framework, a
plaintiff must first establish a prima facie case of discrimination. Hicks, 509 U.S. at 506; see
also Dowrich-Weeks v. Cooper Square Realty, Inc., 535 F. App’x 9, 11 (2d Cir. 2013); Ruiz v.
County of Rockland, 609 F.3d 486, 491 (2d Cir. 2010). The plaintiff’s burden at this stage is
“minimal.” Holcomb, 521 F.3d at 139 (quoting Hicks, 509 U.S. at 506). If the plaintiff satisfies
this initial burden, the burden then shifts to the defendant to articulate a legitimate,
nondiscriminatory reason for its actions. Hicks, 509 U.S. at 506–07; Ruiz, 609 F.3d at 492. The
defendant’s burden “is not a particularly steep hurdle.” Hyek v. Field Support Servs., 702 F.
Supp. 84, 93 (E.D.N.Y. 2010). It “is one of production, not persuasion; it ‘can involve no
credibility assessment.’” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000)
(quoting Hicks, 509 U.S. at 509). “If the employer is able to satisfy that burden, the inquiry then
returns to the plaintiff, to demonstrate that the proffered reason is a pretext for discrimination.”
United States v. City of New York, 717 F.3d 72, 102 (2d Cir. 2013). To defeat summary
judgment at this stage, “a plaintiff need only show that the defendant was in fact motivated at
least in part by the prohibited discriminatory animus.” Henry v. Wyeth Pharm., Inc., 616 F.3d
8
The burden of proof and production for employment discrimination claims under Title
VII and the NYSHRL are identical. Hyek v. Field Support Servs., Inc., 461 F. App’x 59, 60 (2d
Cir. 2012) (“Claims brought under the NYSHRL ‘are analyzed identically’ and ‘the outcome of
an employment discrimination claim made pursuant to the NYSHRL is the same as it is
under . . . Title VII.’” (alteration in original) (quoting Smith v. Xerox Corp., 196 F.3d 358, 363
n.1 (2d Cir. 1999))). Therefore, Plaintiff’s Title VII and NYSHRL discrimination claims are
analyzed together for purposes of this motion.
12
134, 156 (2d Cir. 2010); see also Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. ---, ---, 133 S.
Ct. 2517, 2522–23 (2013) (“An employee who alleges status-based discrimination under Title
VII . . . [must] show that the motive to discriminate was one of the employer’s motives, even if
the employer also had other, lawful motives that were causative in the employer’s decision.”).
i.
Prima Facie Case
To establish a prima facie case of gender discrimination under Title VII, a plaintiff must
show that: “(1) [s]he belonged to a protected class; (2) [s]he was qualified for the position [s]he
held; (3) [s]he suffered an adverse employment action; and (4) that the adverse employment
action occurred under circumstances giving rise to an inference of discriminatory intent.” Brown
v. City of Syracuse, 673 F.3d 141, 150 (2d Cir. 2012); see also Mills v. S. Conn. State Univ., 519
F. App’x 73, 75 (2d Cir. 2013); Ruiz, 609 F.3d at 491–92. National Grid does not dispute that
Plaintiff is a member of a protected class as a woman, or that her termination is an adverse
employment action. (See Def. Mem. 6.) The parties dispute whether other employment actions
complained of by Plaintiff are adverse employment actions, and whether Plaintiff’s termination
occurred under circumstances giving rise to an inference of discrimination.
1.
Adverse employment action
Plaintiff argues that, in addition to her termination, “the totality of [other] actions [by
National Grid] combine to create an atmosphere of adverse action.” (Pl. Opp’n Mem. 10.)
National Grid argues that Plaintiff has not met her burden to show that the minor incidents cited
by Plaintiff comprise an adverse employment action when viewed together. (Def. Reply 7–8.)
The Second Circuit has made clear that “[a]n adverse employment action is a materially
adverse change in the terms and conditions of employment.” Mathirampuzha v. Potter, 548 F.3d
70, 78 (2d Cir. 2008). Such action must be “more disruptive than a mere inconvenience or an
13
alteration of job responsibilities.” Brown, 673 F.3d at 150 (quoting Joseph v. Leavitt, 465 F.3d
87, 90 (2d Cir. 2006)). “Examples of materially adverse employment actions include termination
of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title,
a material loss of benefits, significantly diminished material responsibilities, or other indices
unique to a particular situation.” Feingold, 366 F.3d at 152 (alteration, citation and internal
quotation marks omitted).
The question of whether a plaintiff may aggregate seemingly minor incidents to show an
adverse employment action for a Title VII claim has not been addressed by the Second Circuit. 9
However, even assuming that the Court can consider the aggregate of individually non-adverse
9
This Court has noted that “[i]t is not clear whether state and federal antidiscrimination
laws permit the Court to aggregate individual discrete acts to attempt to satisfy the ‘adverse
employment action’ prong of Plaintiff’s prima facie case.” Bowen-Hooks v. City of New York, -- F. Supp. 2d ---, ---, 2014 WL 1330941, at *18 n.20 (E.D.N.Y. Mar. 31, 2014). Some courts
have expressly rejected this approach. See Kaur v. N.Y.C. Health & Hospitals Corp., 688 F.
Supp. 2d 317, 332 (S.D.N.Y. 2010) (“It should also be noted that there is no authority for the
proposition that this Court should consider the cumulative effect of individually alleged adverse
employment actions when evaluating Plaintiff’s discrimination claim.”); Figueroa v. New York
Health & Hospitals Corp., 500 F. Supp. 2d 224, 230 (S.D.N.Y. 2007) (“Plaintiff cites no case
law, and this Court is aware of none, which supports the proposition that we are to consider the
cumulative effect of individually alleged adverse employment actions when evaluating an
intentional discrimination claim, as plaintiff alleges here.”); Hill v. Rayboy-Brauestein, 467 F.
Supp. 2d 336, 356 (S.D.N.Y. 2006) (“Although . . . Title VII hostile work environment claims
and retaliation claims involve different findings regarding adverse employment actions, the
Plaintiff cites no law, and the Court is aware of none, that supports the proposition that the Court
can consider the cumulative effect of non-adverse employment actions when evaluating an
intentional discrimination claim.”).
In an unpublished summary order, the Second Circuit has suggested that such an
argument is cognizable under Title VII. See Cunningham v. N.Y.S. Dep’t of Labor, 326 F. App’x
617, 619 (2d Cir. 2009) (addressing a “litany of actions” including “unfounded charges of time
abuse,” reassignment of offices, discontinuing a training conference organized by plaintiff, and
excluding plaintiff from a conference and a hiring decision that, “according to plaintiff,
constitute adverse employment action when ‘considered in their totality,’” and finding that
“plaintiffs allegations are — each and together — nothing more than everyday workplace
grievances” and not an adverse employment action for purposes of employment discrimination
claim (citing Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000))).
14
actions in determining whether Plaintiff suffered an adverse employment action for purposes of
her Title VII or her NYSHRL claim, the aggregate of the actions alleged by Plaintiff do not
amount to a materially adverse employment action.
Plaintiff argues that the following actions, when considered collectively, comprise a
materially adverse employment action for purposes of her gender discrimination claim: (1) the
ostracizing of Plaintiff by Delach, (2) Delach’s excluding Plaintiff from meetings, (3) Delach
assigning Plaintiff to clerical duties, and (4) Delach criticizing Plaintiff for attending medical
appointments. (Pl. Opp’n Mem. 10.) The Court also considers Delach’s yelling at Plaintiff and
his “criticiz[ing], belittl[ing] and nitpick[ing] minor details” about Plaintiff’s work “on a near
daily basis,” which were asserted by Plaintiff in her Affidavit but not addressed by Plaintiff in
her opposition brief. (Setelius Aff. ¶¶ 7–9.)
These actions, even when considered in the aggregate, lack the requisite level of material
impact required to establish an adverse employment action for purposes of a gender
discrimination claim. Plaintiff has not pointed to evidence of any material impact of these
actions, such as evidence that that she suffered a loss of prestige, an impact to her reputation, the
loss of an opportunity for a promotion, negative evaluations that affected or could have affected
opportunities to receive raises or promotions, or any action equivalent to a demotion or a
material increase in her workload. 10 See Bowen-Hooks, --- F. Supp. 2d at ---, 2014 WL 1330941,
at *24 (“Plaintiff speculates about how various actions could have affected her career. However,
she has not presented any evidence that it actually did so, such as showing that she applied for
and was denied a promotion to the next level in her department, or that, other than having to
10
Although Plaintiff asserts that Delach suggested that she apply for a position that
would have been the equivalent of a demotion, (Setelius Aff. ¶ 9), she does not assert that she
was in fact demoted.
15
complete occasional undesirable tasks, she experienced some action equivalent to a demotion, or
a material increase in her work load.”); cf. Bass, 256 F.3d at 1118 (plaintiff who “was not given
the same duties as the other Training Instructors . . . , given no routine work assignments and was
forced to perform custodial and clerical duties under the supervision of less senior personnel, . . .
denied . . . the opportunity to earn overtime pay, on-call pay, riding-out-of classification pay, and
adjunct teaching pay, which were available to other Training Instructors. . . . [and] ordered to
take tests to maintain his paramedic pay while none of the other Training Instructors were
required to do so” experienced adverse employment action for purposes of a pre-Burlington
retaliation claim when these actions were considered collectively), overruled in part on other
grounds by Burlington Northern, 548 U.S. at 68. While Plaintiff asserts that her exclusion from
meetings resulted in “not [being] made aware of important safety information necessary to
perform my job functions,” (Setelius Aff. ¶ 3), Plaintiff has not elaborated on how this missing
information affected her job, if at all. Similarly, while Plaintiff argues that her application for a
work coordinator position was denied in 2009, she concedes that the word coordinator position
would have been a demotion rather than a promotion and, in any event, that the position was
eliminated before it was filled. (Pl. Opp’n Mem. 4.)
Plaintiff relies on retaliation cases that have articulated a more inclusive standard for
determining whether an employment action is “adverse.” (Pl. Opp’n Mem. 10–11 (“An
accumulation of ‘seemingly minor incidents’ may combine to establish an ‘atmosphere of
adverse employment action.’” (quoting Wallace v. Suffolk Cnty. Police Dep’t, 396 F. Supp. 2d
251, 259 (E.D.N.Y. 2005) and Phillips v. Bowen, 278 F.3d 103, 109 (2d Cir. 2002))).) However,
Phillips and Wallace addressed First Amendment retaliation claims, and the standard for
establishing an adverse action in a First Amendment retaliation claim is more inclusive than the
16
standard of “materially adverse change in the terms and conditions of employment” which is
required in Title VII discrimination claims. 11 In Phillips, the Second Circuit held that “a
combination of seemingly minor incidents [may] form the basis of a constitutional retaliation
claim once they reach a critical mass.” Phillips, 278 F.3d at 109; see also Wallace, 396 F. Supp.
2d at 259 (“[A]n accumulation of ‘seemingly minor incidents’ may combine to establish an
‘atmosphere of adverse employment action,’ sufficient to allege a [First Amendment] retaliation
claim.” (quoting Phillips, 278 F.3d at 109)). Because these cases were decided under the more
inclusive standard of First Amendment retaliation, 12 the Court declines to apply their
“atmosphere” theory to Plaintiff’s claim of discrimination. 13
11
“In the context of a First Amendment retaliation claim,” the Second Circuit has long
“held that ‘only retaliatory conduct that would deter a similarly situated individual of ordinary
firmness from exercising his or her constitutional rights constitutes an adverse action.’”
Washington v. County of Rockland, 373 F.3d 310, 320 (2d Cir. 2004) (quoting Dawes v. Walker,
239 F.3d 489, 493 (2d Cir. 2001). This standard is different from the “materially adverse change
in the terms and conditions of employment” that is required to establish an adverse action
pursuant to Title VII, of discrimination and, until 2006, retaliation. Zelnik v. Fashion Inst. of
Tech., 464 F.3d 217, 227 (2d Cir. 2006) (noting that the Second Circuit “has never held that a
public employee plaintiff alleging retaliation in violation of the First Amendment must
demonstrate a material change in employment terms or conditions”).
12
Although the district court in Wallace was addressing a First Amendment retaliation
claim, it articulated the standard that applied to Title VII discrimination claims at that time. See
Wallace v. Suffolk Cnty. Police Dep’t, 396 F. Supp. 2d 251, 259 (E.D.N.Y. 2005) (“Plaintiff
must allege that he experienced a ‘materially adverse change in the terms and conditions of
employment.’” (quoting Galabya, 202 F.3d at 640)). The court cited the portion of Galabaya
that addressed a discrimination claim under the Age Discrimination in Employment Act, which,
like Title VII, requires a showing of a materially adverse change in the terms and conditions of
employment. However, the Court in Wallace also stated, and ultimately applied, the principle
that “an accumulation of ‘seemingly minor incidents’ may combine to establish an ‘atmosphere
of adverse employment action,’ sufficient to allege a retaliation claim,” a principle that was
established in the context of a First Amendment claim. Wallace, 396 F. Supp. 2d at 259 (quoting
Phillips v. Bowen, 278 F.3d 103, 109 (2d Cir. 2002)).
13
Plaintiff points to several district court decisions that have applied the “atmosphere”
theory of adverse employment action articulated by Phillips to Title VII retaliation claims that
17
While National Grid’s actions may have contributed to an unpleasant work environment,
absent a connection to a material loss in pay, promotion, opportunity, prestige, reputation or
workplace accomplishments, or some similar actions, these actions, even viewed collectively, are
insufficient to comprise a materially adverse employment action. Therefore, Plaintiff’s only
adverse employment action is the termination of her employment.
2.
Inference of Discrimination
Plaintiff argues that an inference of discrimination can be drawn because the
investigation National Grid conducted into the installation of the underground electrical wires at
Plaintiff’s residence “was a sham,” with several inconsistencies, and because National Grid
treated Plaintiff differently, as compared to similarly-situated male co-workers, by terminating
her for installing the underground electrical service. (Pl. Opp’n Mem. 14–15.) National Grid
argues that Plaintiff cannot raise an inference of discrimination with respect to her termination,
as National Grid terminated Plaintiff “because it reasonably believed that she had violated the
Company’s Standards of Conduct.” (Def. Mem. 7.)
were decided prior to Burlington Northern, when the standard for retaliation was the same as the
standard for discrimination, as well as to Title VII discrimination claims, notwithstanding the
more stringent standards applicable to those claims. (See Pl. Opp’n Mem. 11 (citing, inter alia,
Rooney v. Brown Grp. Retail, Inc., No. 08-CV-484, 2011 WL 1303361, at *15 (E.D.N.Y. Mar.
31, 2011) (applying atmosphere theory to Title VII discrimination and retaliation claims) and
Early v. Wyeth Pharm., Inc., 603 F. Supp. 2d 556, 574 (S.D.N.Y. 2009) (assuming but not
deciding that atmosphere theory applied to the plaintiff’s claims of discrimination and retaliation
brought pursuant to New York State Human Rights Law law and 42 U.S.C. § 1981 (applying
Title VII standards)). Plaintiff also points to non-binding authority from two other Circuit
Courts of Appeal that have considered the cumulative effect of multiple actions in determining
whether a plaintiff experienced an adverse employment action. (Id. at 12 (citing Bass v. Bd. of
Cnty. Comm’rs, Orange Cnty., Fla., 256 F.3d 1095, 1118–19 (11th Cir. 2001) (Title VII) and
Phillips v. Collings, 256 F.3d 843, 849 (8th Cir. 2001) (Section 1983)).) As discussed infra,
even assuming that the Court were to consider the cumulative effect of individually non-adverse
actions, Plaintiff nevertheless cannot establish a materially adverse action.
18
Inference of discrimination “is a ‘flexible [standard] that can be satisfied differently in
differing factual scenarios.’” Howard v. MTA Metro-N. Commuter R.R., 866 F. Supp. 2d 196,
204 (S.D.N.Y. 2011) (quoting Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 91 (2d Cir.
1996)). “No one particular type of proof is required to show that Plaintiff’s termination occurred
under circumstances giving rise to an inference of discrimination.” Moore v. Kingsbrook Jewish
Med. Ctr., No. 11-CV-3625, 2013 WL 3968748, at *6 (E.D.N.Y. July 30, 2013) (citations
omitted). An inference of discrimination can be drawn from circumstances such as “the
employer’s criticism of the plaintiff’s performance in ethnically degrading terms; or its invidious
comments about others in the employee’s protected group; or the more favorable treatment of
employees not in the protected group; or the sequence of events leading to the plaintiff’s
[adverse employment action],” Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 468 (2d Cir.
2001) (citation omitted), or by “showing that an employer treated [an employee] less favorably
than a similarly situated employee outside his protected group,” Abdul-Hakeem v. Parkinson,
523 F. App’x 19, 20 (2d Cir. 2013) (quoting Ruiz, 609 F.3d at 493).
Contrary to National Grid’s claim, Plaintiff is not required to establish that National Grid
lacked a legitimate reason for terminating her in order to raise an inference of discrimination.
See Graham v. Long Island R.R., 230 F.3d 34, 41–42 (2d Cir. 2000) (finding “it was premature
[for the district court] to consider [the defendant’s] evidence” at the prima facie stage, since the
“burden at this stage of the McDonnell Douglas analysis rests solely on” the plaintiff, and noting
that “only [the plaintiff’s] evidence should be considered when deciding whether plaintiff has
met [her] initial burden”). Plaintiff only needs to produce evidence tending to show that her
termination occurred under circumstances giving rise to an inference of discrimination. See
Holcomb, 521 F.3d at 138 (“A plaintiff satisfies [her] burden [at the prima facie stage] if he or
19
she introduces evidence that raises a reasonable inference that the action taken by the employer
was based on an impermissible factor [by showing, inter alia] . . . that the adverse employment
action occurred under circumstances giving rise to an inference of discriminatory intent.”).
Plaintiff attempts to do so by arguing that (1) the inconsistencies in the investigation leading to
Plaintiff’s termination raise an inference of discrimination, and (2) she was treated differently
from a similarly situated co-worker. (Pl. Opp’n Mem. 14–15.)
A.
Investigation inconsistencies
Plaintiff argues that National Grid’s discriminatory intent in terminating her is
“demonstrated by the fact that the investigation it conducted in connection with the installation
of the underground electrical wires at [Plaintiff’s] residence was a sham.” (Pl. Opp’n Mem. 15.)
Plaintiff specifically cites the following inconsistencies in the investigation, (1) the fact that
Carlon admitted to investigators that “some sort of discussion” had taken place between himself
and Plaintiff regarding underground electrical service, but that the investigators told Plaintiff that
Carlon “said she was lying about ever having discussed the underground electrical wires with
him,” (id.), (2) the fact that the investigation was commenced one year after the underground
electrical service was installed, and took six months to conclude, was “suspect,” (id. at 16), and
(3) the fact that one of the National Grid investigators provided a sworn statement indicating that
Plaintiff had not provided the names of other employees who also had underground service
installed at their homes, but that another National Grid employee suggested in his deposition that
Plaintiff had identified Carlon as one such employee, (id. at 15). National Grid argues that
Plaintiff’s “subjective view that the investigation should have been conducted differently is not
20
sufficient to defeat summary judgment.” 14 (Def. Reply Mem. 6 (citing Mendez-Nouel v. Gucci
Am., Inc., No. 10-CV-3388, 2012 WL 5451189, at *15 (S.D.N.Y. Nov. 8, 2012), aff’d, 542 F.
App’x 12 (2d Cir. 2013)).)
Plaintiff’s argument about the deficiency of National Grid’s investigation into the
underground electrical service at her home is not sufficient to raise even a minimal inference of
discrimination. Plaintiff asserts that Carlon “said she was lying about ever having discussed the
underground electrical wires with him,” which, according to Plaintiff’s memorandum of law,
contradicted the Investigation Notes where Carlon admitted that there was “some sort of
discussion,” between Carlon and Plaintiff. (Pl. Opp’n Mem. 15 (citing Investigation Notes and
Setelius Aff. ¶ 13).) However, Plaintiff’s affidavit statement only asserts that the investigators
told Plaintiff that Carlon “said I was ‘a liar.’” (Setelius Aff. ¶ 13.) It does not state that the
investigators told Plaintiff that Carlon asserted that Plaintiff was lying “about ever having
discussed the underground electrical wires with him.” Carlon’s alleged statement that Plaintiff
was “a liar” is not inconsistent with the Investigation Notes documenting that Carlon denied
having “initiated the underground service process” for Plaintiff. (See Investigation Notes 4.)
Plaintiff’s remaining arguments rely on minor factual discrepancies within the
investigation that are immaterial and lack any evidentiary basis to plausibly be explained by
discrimination. Plaintiff argues for example that Dorsey, in his initial affidavit, stated that
Plaintiff “refused to identify any other company employee who allegedly used a Company
contractor to install an underground electrical service and his/her personal residence,” but that
Romano stated during his deposition that Plaintiff “told the investigators about Carlon’s
14
It is not clear from Defendants’ brief whether they address this argument to the
“inference of discrimination” element or the element of “pretext,” but the Court assumes
Defendants address it to both.
21
underground installation,” and that a jury could infer a discriminatory motive from this
inconsistency. (Pl. Opp’n Mem. 15 (citing Romano Dep. 21).) Even assuming that Romano
testified that Plaintiff told the investigators about Carlon, but Dorsey presented a sworn
statement to the contrary, it is unclear how the fact that National Grid incorrectly stated that
Plaintiff did not identify any other employees by name supports the conclusion that National
Grid had a discriminatory motive for terminating Plaintiff. There is no evidence that Plaintiff’s
refusal to name other employees was one reason for her termination, and Plaintiff has not made
such a claim. A factual inconsistency in National Grid’s description of its investigation which
factual discrepancy is not material to National Grid’s decision to terminate Plaintiff does not
support an inference of discrimination.
Plaintiff also asserts that the “timing of the investigation is suspect,” in that it was
commenced more than one year after the work was completed and the investigation took six
months to complete. (Pl. Opp’n Mem. 16.) In fact, the Investigation Notes submitted by
Plaintiff show that the investigation was commenced in May 2009, the same month that the
underground electrical service was installed at Plaintiff’s residence, and that there were three
investigatory site visits made to Plaintiff’s residence by the Revenue Protection department
between July 2009 and February 2010. (Investigation Notes 1.) As for the length of time that
the investigation took to complete, it is unclear how this fact creates an inference that National
Grid was motivated by impermissible discriminatory animus.
Absent any evidence that National Grid’s decision to terminate Plaintiff was motivated
by her gender, the minor inconsistencies in the investigation are insufficient to establish that
Plaintiff’s termination took place under circumstances giving rise to an inference of
discrimination. See McPherson v. New York City Dept. of Educ., 457 F.3d 211, 216 (2d Cir.
22
2006) (“McPherson is attacking the reliability of the evidence supporting DOE’s conclusions. In
a discrimination case, however, we are decidedly not interested in the truth of the allegations
against plaintiff. We are interested in what ‘motivated the employer.’” (quoting United States
Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1983) (emphasis in McPherson)));
see also Wierman v. Casey’s Gen. Stores, 638 F.3d 984, 997 (8th Cir. 2011) (“[S]hortcomings in
an investigation do not by themselves support an inference of discrimination.”); Jones v. Gen.
Bd. of Global Ministries of United Methodist Church, No. 96-CV-5462, 1997 WL 458790, at *2
(S.D.N.Y. Aug. 11, 1997) (finding that plaintiff’s criticism of “the validity of the investigation
conducted by [her employer] and the credibility of the witnesses upon whom [the employer]
relied . . . may prove that the investigation was poorly conducted, . . . [but] it does not raise an
inference of discrimination based on race or sex”).
Plaintiff has offered no evidence to show that any of the decision-makers involved in her
investigation and termination had any gender-based discriminatory motivation. Rather, all of
Plaintiff’s proffered evidence of gender-based discrimination focuses on the conduct of Delach,
who undisputedly played no role in the decision to initiate the investigation into Plaintiff’s
purported misconduct or to terminate her. (Def. 56.1 ¶ 23; Pl. 56.1 ¶ 23; Delach Decl. ¶¶ 14–15;
Dorsey Decl. ¶ 23; Beisner Decl. ¶ 10).) Under these circumstances, in the absence of any
evidence to support Plaintiff’s claim that the decision to terminate her was motivated by gender
discrimination, the minor inconsistencies in the investigation are insufficient to establish an
inference of discrimination. See Wolf v. Time Warner, Inc., 548 F. App’x. 693, 695 (2d Cir.
2013) (affirming summary judgment for defendant and noting that “while Wolf’s claim stems in
large part from a comment about her age made by her colleague Harry Spencer in 2005, Wolf
has presented little, if any, evidence of [discriminatory] animus on the part of . . . Wolf’s
23
supervisors who fired her in 2007”); cf. Sassaman v. Gamache, 566 F.3d 307, 315 (2d Cir. 2009)
(holding that “where a plaintiff can point to evidence closely tied to the adverse employment
action that could reasonably be interpreted as indicating that discrimination drove the decision,
an arguably insufficient investigation may support an inference of discriminatory intent”).
B.
Differential treatment
Plaintiff argues that Carlon engaged in comparable conduct but was not disciplined in
any manner, raising an inference of discrimination. (Pl. Opp’n Mem. 14; Setelius Aff. ¶ 20k.)
An inference of discrimination can be raised by showing that (1) a plaintiff was similarly
situated to other employees outside her protected group, and (2) she was treated less favorably
than those employees. Ruiz, 609 F.3d at 493 (“A showing of disparate treatment — that is, a
showing that an employer treated plaintiff ‘less favorably than a similarly situated employee
outside his protected group’ — is a recognized method of raising an inference of discrimination
for the purposes of making out a prima facie case.”); Sethi v. Narod, --- F. Supp. 2d ---, ---, 2014
WL 1343069, at *21 (E.D.N.Y. Apr. 2, 2014) (same); John v. Kingsbrook Jewish Med.
Ctr./Rutland Nursing Home, No. 11-CV-3624, 2014 WL 1236804, at *9 (E.D.N.Y. Mar. 25,
2014) (same); Batchelor v. City of New York, --- F. Supp. 2d ---, ---, 2014 WL 1338299, at *14
(E.D.N.Y. Apr. 1, 2014) (same); Shlafer v. Wackenhut Corp., 837 F. Supp. 2d 20, 25 (D. Conn.
2011) (“Discriminatory motivation may be established by allegations of preferential treatment
given to similarly situated individuals . . . .” (citations omitted)). To raise an inference of
discrimination in this manner, a plaintiff must show that “she was similarly situated in all
material respects to the individuals with whom she seeks to compare herself.” Brown v. Daikin
Am. Inc., 756 F.3d 219, 230 (2d Cir. 2014) (quoting Graham, 230 F.3d at 39).
24
A plaintiff can show that she was “similarly situated” to other employees by showing that
they were “(1) subject to the same performance evaluation and discipline standards and
(2) engaged in comparable conduct.” Abdul-Hakeem, 523 F. App’x at 21 (quoting Ruiz, 609
F.3d at 493–94 (internal quotation marks omitted)). Where the argument of disparate treatment
is based on disparate enforcement of company policy, a plaintiff must show that “similarly
situated employees who went undisciplined engaged in comparable conduct.” Graham, 230 F.3d
at 40. The conduct in question must be of “comparable seriousness,” id. (quoting McDonnell
Douglas, 411 U.S. at 804), but does not require a showing “that employees engage[d] in the
exact same offense.” Id. (citation and quotation marks omitted). In addition, “[t]he
determination that two acts are of comparable seriousness requires . . . an examination of the
context and surrounding circumstances in which those acts are evaluated.” Id. “Whether two
employees are similarly situated ordinarily presents a question of fact for the jury.” Matusick v.
Erie Cnty. Water Auth., 757 F.3d 31, 54 (2d Cir. 2014) (quoting Graham, 230 F.3d at 39).
It is undisputed that Carlon and Plaintiff were subject to the same discipline standards, as
National Grid “requires all employees to observe ‘the highest standards of business conduct,’ to
avoid situations that create ‘even the appearance of impropriety,’ to ‘use their position, [and the]
opportunities discovered through their position, and company resources only for company
purposes and not for personal gain,’” and to “protect company resources [they] work with or are
responsible for.” 15 (Def. 56.1 ¶ 5; Pl. 56.1 ¶ 5 (quoting Standards of Conduct).)
15
Although Carlon as a work coordinator, and Plaintiff as a field supervisor had different
titles, this difference is not material to the similarly-situated analysis, as there is no evidence that
the Standards of Conduct did not apply equally to work coordinators and field supervisors. See
Dall v. St. Catherine of Siena Med. Ctr., 966 F. Supp. 2d 167, 184 (E.D.N.Y. 2013) (noting that
plaintiff and comparator were similarly situated with respect to conduct that violated the
employer’s disciplinary standards, despite having different titles where, “[b]y its terms, the
25
Plaintiff argues that Carlon engaged in comparable conduct to her by facilitating the
installation of the underground electrical service at Plaintiff’s home. 16 (Pl. Opp’n Mem. 14–15.)
National Grid argues that Carlon did not engage in comparable conduct, because National Grid
conducted an investigation into whether Carlon violated the company Standards of Conduct and
concluded that Carlon had not violated the company Standards of Conduct, because he did not
use a National Grid contractor to install the underground service at his home. (Def. Reply 5–7
and n.4; Dorsey Reply Aff. ¶ 4.) They also note that Carlon “denied any involvement in the
installation of [Plaintiff’s] underground service, and there was no independent evidence to
substantiate [Plaintiff’s] claim that he did.” (Def. Reply 7.)
National Grid cannot rebut the assertion that Plaintiff and Carlon, the proposed
comparator, are similarly situated merely by its subjective conclusions based on an internal
Sexual Harassment Policy applies to all employees, and Defendant has not argued, nor is there
any evidence to suggest, that the policy was applied more stringently to MRI technicians than
registered nurses” (citing cases)); see also Graham v. Long Island R.R., 230 F.3d 34, 42 (2d Cir.
2000) (noting that plaintiff and two comparators were similarly situated and had engaged in
comparable conduct by violating company policy, despite having different positions, where
“[n]owhere does the policy refer to the position held by the employee”).
16
At oral argument counsel for Plaintiff conceded that National Grid’s investigation and
conclusion that Carlon had not used company resources to install an underground electrical
service at his home prevented Plaintiff from establishing that Carlon engaged in comparable
conduct to her in this respect, for purposes of establishing an inference of discrimination.
Plaintiff claims that Carlon had underground service installed at his residence, but Plaintiff
admits that she has no personal knowledge as to whether Carlon used a National Grid contractor
and resources to install this service. (See Compl. ¶¶ 39–40; Pl. Dep. 56:5–58:8.) Indeed, there is
insufficient evidence in the record from which a jury could find that Carlon engaged in
comparable conduct with respect to the installation of an underground electrical service at his
own residence. Plaintiff admitted that she had not paid for this benefit, and that she was “99%
certain” that a National Grid contractor had done the installation. (Def. 56.1 ¶ 12; Pl. 56.1 ¶12;
Investigation Notes 5.) This was not a subjective determination by National Grid, but Plaintiff’s
own statement. In contrast, there is no evidence in the record that Carlon similarly used a
National Grid contractor for the installation of the underground service at his own residence;
Carlon denied that he did. Accordingly, Plaintiff cannot show that Carlon engaged in comparable
conduct with respect to the installation of underground electrical service at his own residence.
26
investigation. See Graham, 230 F.3d at 40 (noting that, in determining whether a plaintiff and a
comparator are similarly situated, “there should be an objectively identifiable basis for
comparability” (emphasis added) (citation and internal quotation marks omitted)). Here, in light
of the factual dispute over whether Carlon played a role in the installation of the underground
electrical service, National Grid’s conclusion is not a substitute for a jury determination of
whether Plaintiff and her proposed comparator were similarly situated. See Temple v. City of
New York, No. 06-CV-2162, 2010 WL 3824116, at *8 (E.D.N.Y. Sept. 23, 2010) (noting that
while the plaintiff’s employer “concluded . . . that Plaintiff’s conduct was more egregious than
that of her comparators, factual issues concerning comparable conduct such as those presented in
this case are appropriately resolved by a jury” for purposes of establishing an inference of
discrimination (citing Graham, 230 F.3d at 42–43)).
Plaintiff argues that Carlon was similarly situated to her in that he arranged to have the
underground electrical service installed at Plaintiff’s residence without her paying for it, which
arrangement violated National Grid policy. Plaintiff points to the fact that during National
Grid’s investigation, Carlon initially denied having discussed the underground service with
Plaintiff, and then reversed his position during the same conversation and recalled that “he did
discuss with [Plaintiff] the idea of going to underground service, [and] said sure why not go to
underground service.” (See Investigation Notes 4.) At oral argument, counsel for Plaintiff
argued that this conduct by Carlon would comprise a violation of National Grid Standards of
Conduct, and that such violation was of comparable seriousness to Plaintiff’s violation in
accepting the installation of the underground electrical service at her home. Counsel for
National Grid argued that Carlon and Plaintiff did not engage in comparable conduct because it
27
was not simply the installation of the service in her home that led to Plaintiff’s termination, but
the fact that Plaintiff did not make any follow-up inquiry with respect to paying for the services.
There are disputed facts as to Carlon’s role in the installation of the underground
electrical service at Plaintiff’s home. Crediting Plaintiff’s version of events, if Carlon arranged
for a National Grid contractor to perform the work at Plaintiff’s home because Plaintiff did not
have authority to do so, and subsequently failed to generate a bill for the work, a reasonable jury
could find that Carlon’s conduct was objectively comparable to Plaintiff’s inasmuch as it would
have violated National Grid’s Standards of Conduct requirement that employees “protect
company resources [they] work with or are responsible for.” (See Standards of Conduct 8.)
Even though the conduct for which Plaintiff was terminated included her own ongoing failure to
inquire about making a payment for the installation of the underground service, whereas Carlon’s
alleged misconduct only went as far as failing to generate a bill for the services, the conduct of a
proposed comparator need not be identical, but only “sufficiently similar to plaintiff’s to support
at least a minimal inference that the difference [in treatment] may be attributable” at least in part
to discrimination. Senno v. Elmsford Union Free Sch. Dist., 812 F. Supp. 2d 454, 475 (S.D.N.Y.
2011) (alteration in original) (quoting McGuinness v. Lincoln Hall, 263 F.3d 49, 54 (2d Cir.
2001)); Dall v. St. Catherine of Siena Med. Ctr., 966 F. Supp. 2d 167, 185 (E.D.N.Y. 2013)
(“[W]hether Plaintiff’s conduct, centering around one violation of Defendant's Sexual
Harassment Policy, is more serious than Birmingham’s ongoing sexually explicit behavior, is a
decision best left for the jury.”); Williams v. Mount Sinai Med. Ctr., 859 F. Supp. 2d 625, 641
(S.D.N.Y. 2012) (“Were a jury to find Williams and Buchsbaum similarly situated, it could
conclude that the disparate treatment Williams received raises an inference of discrimination.”).
28
Viewing the evidence in the light most favorable to Plaintiff, a reasonable jury could find
that Plaintiff and Carlon engaged in conduct sufficiently similar to render them similar “in all
material respects,” such that the difference in their conduct raises the minimal inference of
discrimination that is required at the prima facie stage. See Graham, 230 F.3d at 43 (“Whether
these employees were similarly situated presented a material question of fact. Were a jury to find
that [the plaintiff] was similarly situated to [the proposed comparators], it could conclude that the
disparate treatment he received completes a prima facie showing of discrimination under Title
VII.”).
ii.
Nondiscriminatory explanation
Once Plaintiff establishes her prima facie case, the burden shifts to National Grid to
proffer a nondiscriminatory explanation for her termination. National Grid argues that Plaintiff’s
violation of the Company’s Standards of Conduct was the nondiscriminatory reason for her
termination. (Def. Mem. at 13–14.) This satisfies National Grid’s burden at this stage. See
Pacenza v. IBM Corp., 363 F. App’x 128, 130 (2d Cir. 2010) (affirming district court finding
that defendant’s proffered reason for terminating plaintiff — for violating company policies —
was a nondiscriminatory reason); Walcott v. Cablevision, No. 10-CV-2602, 2012 WL 4447417,
at *10 (E.D.N.Y. Sept. 24, 2012) (finding that the defendant’s explanation that the plaintiff was
terminated for violating company policy satisfied its burden at this stage of the analysis).
In light of Plaintiff’s argument that she was treated differently from a similarly situated
individual, National Grid also asserts that the nondiscriminatory reason for its differential
treatment between Carlon and Plaintiff with respect to the investigation into the installation of
the underground electrical service at Plaintiff’s home was the fact that Carlon “denied any
involvement in the installation of [Plaintiff’s] underground service, and there was no
29
independent evidence to substantiate [Plaintiff’s] claim that he did.” (Def. Reply 7.) This is
sufficient to meet its burden to proffer a nondiscriminatory reason for the difference in treatment
between Plaintiff and Carlon.
iii. Pretext
Once a defendant has proffered a nondiscriminatory reason for its adverse action, the
burden shifts back to the plaintiff to show that this reason is pretextual. Holcomb, 521 F.3d
at 141. To avoid summary judgment, a plaintiff must offer evidence from which a reasonable
jury could conclude by a preponderance of the evidence that discrimination played a role in the
adverse action taken by the defendant. Id.; Dall, 966 F. Supp. 2d at 187. At this stage a plaintiff
may “adduce . . . competent evidence to rebut [the defendant’s] explanation or show that it is
‘unworthy of credence.’” Deabes v. Gen. Nutrition Corp., 415 F. App’x 334, 335 (2d Cir. 2011)
(quoting Dister v. Cont’l Group, Inc., 859 F.2d 1108, 1113 (2d Cir. 1988)). However, a
“plaintiff is not required to show that the employer’s proffered reasons were false or played no
role in the employment decision, but only that they were not the only reasons and that the
prohibited factor was at least one of the ‘motivating’ factors.” Holcomb, 521 F.3d at 138
(quoting Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203 (2d Cir. 1995)); see also Nassar, 570
U.S. at ---, 133 S.Ct. at 2526; Garcia v. Hartford Police Dep’t, 706 F.3d 120, 127 (2d Cir. 2013).
The burden is on the plaintiff to “point to evidence that reasonably supports a finding of
prohibited discrimination.” Wolf v. New York City Dep’t of Educ., 421 F. App’x 8, 11 (2d Cir.
2011) (quoting James v. New York Racing Ass’n, 233 F.3d 149, 154 (2d Cir. 2000)); see also
Desir v. City of New York, 453 F. App’x 30, 34 (2d Cir. 2011) (“In short, the question becomes
whether the evidence, taken as a whole, supports a sufficient rational inference of
discrimination.” (quoting Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000))).
30
Plaintiff contends that a reasonable jury could find that National Grid’s proffered reason
for terminating her are pretextual based on two reasons: (1) the numerous inconsistencies in the
investigation that led to Plaintiff’s termination, and (2) the fact that Plaintiff was treated
differently from other employees with respect to the conduct that led to her termination. (Pl.
Opp’n Mem 15.) As discussed above, the inconsistencies in the investigation are insufficient to
meet Plaintiff’s minimal burden of raising an inference of discrimination at the prima facie stage;
therefore they are also insufficient to meet her burden of showing that this reason was pretext for
discrimination.
“[A] showing that similarly situated employees” falling outside the plaintiff’s protected
class “received more favorable treatment [than the plaintiff] can . . . serve as evidence that the
employer’s proffered legitimate, non-discriminatory reason for the adverse job action was a
pretext for . . . discrimination.” Adamczyk v. New York Dep’t of Corr. Servs., 474 F. App’x 23,
27 (2d Cir. 2012) (alteration in original) (quoting Graham, 230 F.3d at 43). To demonstrate
evidence of pretext in this manner, the plaintiff must show that “she was ‘similarly situated in all
material respects’ to the individuals with whom she seeks to compare herself.” Iuorno v. DuPont
Pharm. Co., 129 F. App’x 637, 640 (2d Cir. 2005) (quoting Graham, 230 F.3d at 39).
As discussed above, Plaintiff has presented sufficient evidence that a reasonable jury
could find that she and Carlon were similarly situated in all material respects. However, Plaintiff
has not shown that Defendant’s proffered reason for the difference in treatment — the fact that
they believed Carlon’s denials of playing any role in Plaintiff’s installation — is pretext for
discrimination. Moreover, even if she could make the case that National Grid should not have
credited Carlon’s denials and a reasonable jury could find that Plaintiff and Carlon were
31
similarly situated, there is insufficient evidence in the record to permit a rational inference that
Plaintiff’s termination was motivated at least in part by discrimination.
1.
Explanation for differential treatment
While Plaintiff was able to establish a prima face case of discrimination based solely on
her evidence that National Grid treated her differently from Carlon, who is outside her protected
group, she still must show, at this third and final stage of the burden-shifting analysis, that
National Grid’s proffered reason for their differential treatment is pretext for discrimination.
Consequently, the initial focus of the Court’s inquiry is the potential motivations of National
Grid and the individuals conducting the investigation.
National Grid’s proffered reason for their different treatment of Plaintiff and Carlon, with
respect to the respective role played by each in the installation of underground electrical service
at Plaintiff’s home, is the fact that Carlon “denied any involvement in the installation of
[Plaintiff’s] underground service, and there was no independent evidence to substantiate
[Plaintiff’s] claim that he did.” (Def. Reply 7.) Plaintiff argues that the fact that during his
interview with investigators Carlon initially denied having a conversation with Plaintiff about
underground electrical service and subsequently recalled the conversation later in the same
interview, and the fact that Plaintiff was not in a position to order the work to be done herself
suggests that National Grid’s proffered reasons are not credible. However, these facts alone are
not such persuasive evidence of Carlon’s culpability that National Grid’s decision to believe
Carlon’s denial of involvement should be discounted as “unworthy of credence.” See Deabes,
415 F. App’x at 335.
In other cases where a plaintiff has successfully argued that an employer’s articulated
reason for different treatment of a comparator who allegedly engaged in similar conduct was
simply pretext for discrimination, the plaintiff put forward some evidence that supported the
32
rational inference that the employer’s conclusion was either false or so irrational or arbitrary as
to permit an inference of discrimination, or evidence that the conclusion was motivated at least in
part by discrimination. See Temple v. City of New York, No. 06-CV-2162, 2010 WL 3824116,
at *10–11 (E.D.N.Y. Sept. 23, 2010) (finding that defendant’s reliance on the school principal’s
determination that the African-American plaintiff engaged in more egregious misconduct than
similarly situated white teachers was not a nondiscriminatory reason for their differential
treatment, where the plaintiff put forth evidence that the principal “engaged in a pattern of
disparately favoring Caucasian employees at [the school] — i.e., that he routinely overlooked
misconduct committed by Caucasian employees, but would not hesitate to formally charge
Plaintiff with disciplinary infractions”); Walker v. New York City Dep’t of Corr., No. 01-CV1116, 2008 WL 4974425, at *17 (S.D.N.Y. Nov. 19, 2008) (finding that the plaintiff met her
burden to show that employer’s explanation for its differential treatment of a similarly situated
comparator was pretextual by showing that it was false); cf. Mandell v. County of Suffolk, 316
F.3d 368, 379 (2d Cir. 2003) (“[I]n a predominantly Christian department, [a supervisor’s]
decision to reject the one known Jewish candidate in favor of a candidate of unknown religion,
coupled with his pro-Christian comments, could support an inference of discrimination.”
(emphasis added)); Weinstock v. Columbia Univ., 224 F.3d 33, 46 (2d Cir. 2000) (finding that
“[a] claim that a single, supposedly less qualified male received tenure in the hard sciences,”
while the plaintiff, a female professor, did not receive tenure “does not signify sex bias because
the record at best indicates a difference of opinion in evaluation of scholarly merit, and not
gender discrimination”).
In contrast, Plaintiff does not offer any evidence of discriminatory motivation, not even
evidence of implicit bias, by the individuals involved in her investigation and the ultimate
33
decision to terminate her employment. In the absence of evidence to substantiate the possibility
that National Grid’s proffered reason for treating Plaintiff differently from Carlon — the fact that
they credited Carlon’s denial of involvement in the installation of the underground service, while
Plaintiff admitted to having the service installed and failed to inquire about billing — is pretext
for discrimination, Plaintiff has not met her burden to show that summary judgment should not
be granted.
2.
Explanation for termination
Even assuming, arguendo, that Plaintiff could establish that Carlon in fact played a role
in the installation of the underground electrical service, in the complete absence of any other
evidence in the record to support the rational inference that discrimination was at least in part an
explanation for the difference in treatment, Plaintiff still cannot meet her ultimate burden of
showing not merely that National Grid’s reasons for terminating her were pretextual, but that her
termination was motivated, at least in part, by discrimination. Although the Second Circuit in
Graham found that an employer’s differential treatment of a comparator who is similarly situated
to a plaintiff but outside the plaintiff’s protected group is sufficient evidence from which a
reasonable jury could find that the employer’s proffered nondiscriminatory reason was
pretextual, it did so under circumstances where the plaintiff and his proposed comparators were
so similarly situated that it would be rational to draw the inference that the only possible
explanation for their difference in treatment was the only way in which the plaintiff and the
comparators differed — with respect to their protected status. See Graham, 230 F.3d at 43
(“Were a jury to find on these facts that there was disparate treatment in LIRR’s disciplining of
plaintiff when compared to similarly situated employees,” — where plaintiff had been
terminated whereas a proposed comparator had only been warned after both committed their
second violation of a company policy that expressly provided for automatic dismissal after
34
second violation — “it could also find that [the employer’s] proffer of a non-discriminatory
reason for [the plaintiff’s] dismissal was pretextual.”); Senno, 812 F. Supp. 2d at 476 (finding
that a reasonable jury could infer a retaliatory motive based on the only evidence offered by
plaintiff, defendant’s differential treatment of her and a comparator, where “[s]everal of the acts
of misconduct with which Plaintiff was charged are identical to acts of misconduct by Dr. Calvi
of which the District was aware,” and “Plaintiff was subject to 3020–a discipline for filing an
incomplete account of his altercation with Dr. Calvi in the school hallway because he failed to
describe the full scope of her inappropriate behavior in his report,” while “Dr. Calvi was not
subject to the same type of disciplinary charges, notwithstanding that she was the one who
actually engaged in that inappropriate behavior”) Under the circumstances of these cases, the
very close similarity between the plaintiff and his comparators allows the similarly-situated
analysis, standing alone, to give rise to a reasonable inference of discrimination.
The Second Circuit has also recognized that a plaintiff and his proposed comparator need
not be “identical,” but merely sufficiently similar in conduct that a reasonable jury could
conclude that the difference in their treatment could rationally be explained, at least in part, by
discrimination. See Matusick, 757 F.3d at 54 (“Matusick’s evidence of comparators, although
not overwhelming, is sufficient for a reasonable jury to have ruled in his favor on this claim.”)
In Matusick, the Second Circuit credited other evidence in the record to conclude that the
plaintiff had met her burden of showing sufficient evidence to support a rational inference of
discrimination. See id. (“There may not have been anyone at the ECWA who engaged in exactly
the same misconduct as did Matusick, but this did not preclude the jury from considering the
way that other employees who also engaged in disciplinable on-the-job misconduct were treated,
combined with other indications that ECWA employees held racially discriminatory views, to
35
conclude that Matusick was terminated, at least in material part, because of” race.) (emphasis
added).
In other words, where the gap in conduct between a plaintiff and a comparator is so small
that only one variable, discrimination, can reasonably explain the difference, courts have not
required additional circumstantial evidence of discriminatory motivation to allow a plaintiff to
meet her burden of showing that a reasonable jury could find that discrimination was more likely
than not a reason for her differential treatment. However, where the gap in conduct is large
enough that any number of explanations can explain the difference, it is reasonable to expect a
plaintiff to put forward some additional evidence — however slight — to tip the scales and make
discrimination a more likely explanation than other equally possible nondiscriminatory
explanations, such as seniority, favoritism or prior relationships; otherwise, a jury would be
required to speculate in order to conclude that the reason for the difference in treatment was
discrimination. See Conway v. Microsoft Corp., 414 F. Supp. 2d 450, 461 (S.D.N.Y. 2006)
(“Conway’s evidence in support of his discrimination claim consists entirely of his allegations of
disparate treatment, assumed for purposes of his prima facie case to raise an inference of
discrimination. A close examination of these allegations reveals that Conway’s prima facie case
is weak at best, and there is no ‘additional evidence’ offered to show that Microsoft’s legitimate
reason for demoting Conway” was pretext for discrimination.). Although National Grid’s
reasons for crediting Carlon’s version of events may be mistaken or even patently unfair, so long
as those reasons do not include or are not a proxy for gender-based discrimination, there is no
basis for a finding of liability under Title VII.
Here, although Plaintiff has put forward evidence sufficient to require the question of
whether she and Carlon were similarly situated to be resolved by the jury, even assuming that a
36
reasonable jury could find that National Grid treated a similarly-situated employee differently,
under the circumstances here such a finding, while contributing to Plaintiff’s showing that
National Grid’s real motivations may have included discrimination, is not sufficient to allow a
reasonable jury to conclude that discrimination played a role in National Grid’s decision. In the
absence of any circumstantial evidence of discriminatory animus other than the differential
treatment, the inference that the difference in treatment is attributable in part to discrimination
would be based on speculation rather than on evidence or a rational inference.
The Court grants National Grid’s motion for summary judgment as to Plaintiff’s Title VII
and NYSHRL discrimination claims. 17
c.
Retaliation claims against National Grid — Title VII and NYSHRL
Plaintiff claims that National Grid retaliated against her in violation of Title VII and the
NYSHRL. (Compl. ¶¶ 43, 45.) Claims of retaliation for engaging in protected conduct under
Title VII and NYSHRL are examined under the McDonnell Douglas burden shifting test. See
17
Plaintiff also argues that “numerous other male employees violated company policies
but were not similarly investigated and terminated,” and cites several examples, dating back to
the mid-1980s, of both named and un-named employees who violated various company policies
such as going golfing on company time, accessing pornography on company computers, and
billing National Grid for personal shopping expenses, but who were not disciplined. (Pl. Opp’n
Mem. 14–15 (citing Setelius Aff. ¶ 19).) At oral argument, counsel for Plaintiff argued that,
viewing Plaintiff’s conduct more broadly as “misusing company resources,” these employees
were similarly situated to Plaintiff with respect to their misconduct. The Court is not persuaded
that such a broad category of conduct would satisfy the “similarly situated in all material
respects” requirements of Graham. For purposes of Plaintiff’s discrimination claim based on her
termination, the only relevant comparison is with respect to the conduct that led to Plaintiff’s
termination — the installation of the underground electrical service at her home by a National
Grid contractor without payment for the service. See Abdul-Hakeem, 523 F. App’x at 21
(holding that engagement in comparable conduct is necessary to establish that an employee is
similarly situated to co-employees in this context). In any event, there is no admissible evidence
in the record substantiating that the alleged misconduct by other National Grid employees
occurred, or that it was committed by individuals subject to the same performance evaluation and
discipline standards as Plaintiff. Plaintiff has not alleged personal knowledge of any of these
alleged infractions.
37
Summa v. Hofstra Univ., 708 F.3d 111, 125 (2d Cir. 2013) (“The burden-shifting framework laid
out in McDonnell Douglas . . . governs retaliation claims under both Title VII and the
NYSHRL.” (citing McDonnell Douglas, 411 U.S. at 802)). Under the test, “[f]irst, the plaintiff
must establish a prima facie case of retaliation. If the plaintiff succeeds, then a presumption of
retaliation arises and the employer must articulate a legitimate, non-retaliatory reason for the
action that the plaintiff alleges was retaliatory.” Fincher, 604 F.3d 712, 720 (2d Cir. 2010)
(citations omitted); see also Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556, 568
n.6 (2d Cir. 2011) (discussing the burden shifting analysis in retaliation context); Jute v.
Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005) (same). If the employer succeeds
at the second stage, the presumption of retaliation dissipates, and the plaintiff must show that, but
for the protected activity, she would not have been terminated. 18 See Nassar, 570 U.S. at ---,
133 S. Ct. at 2534 (emphasis added) (holding that a plaintiff asserting a Title VII retaliation
claim “must establish that his or her protected activity was a but-for cause of the alleged adverse
action by the employer”); see also Joseph v. Owens & Minor Distribution, Inc., No. 11-CV5269, 2014 WL 1199578, at *13 (E.D.N.Y. Mar. 24, 2014) (same); Russo v. New York
Presbyterian Hosp., 972 F. Supp. 2d 429, 454 (E.D.N.Y. 2013) (same); Ellis v. Century 21 Dep’t
18
It is unclear whether the Supreme Court decision in Nassar, which changed the
standard for establishing causation in a retaliation claim from showing that retaliation was a
“motivating factor,” to showing that it is a “but-for” cause of the adverse employment action,
applies to retaliation claims brought pursuant to the NYSHRL. See Bowen-Hooks, --- F. Supp.
2d at ---, 2014 WL 1330941, at *25 n.25 (explaining the absence of binding authority on this
issue, and applying but-for standard to plaintiff’s retaliation claims under Title VII and
NYSHRL). Since the NYSHRL statutory language is the same, and the New York Court of
Appeals has consistently stated that federal Title VII standards are applied in interpreting the
NYSHRL, this Court will continue to interpret the standard for retaliation under the NYSHRL in
a manner consistent with Title VII jurisprudence, as clarified by the Supreme Court in Nassar.
See id. (collecting cases); see also Sass v. MTA Bus Co., --- F. Supp. 2d ---, ---, 2014 WL
3818663, at *5 (E.D.N.Y. Aug. 4, 2014).
38
Stores, 975 F. Supp. 2d 244, 279 (E.D.N.Y. 2013) (same); Moore, 2013 WL 3968748, at *14
(same).
i.
Prima facie case
In order to establish a prima facie case of retaliation, a plaintiff must establish that
“(1) she engaged in protected activity; (2) the employer was aware of this activity; (3) the
employee suffered a materially adverse employment action; and (4) there was a causal
connection between the alleged adverse action and the protected activity.” Kelly v. Howard I.
Shapiro & Assocs. Consulting Eng’rs, P.C., 716 F.3d 10, 14 (2d Cir. 2013) (per curiam) (quoting
Lore v. City of Syracuse, 670 F.3d 127, 157 (2d Cir. 2012)); see also Summa, 708 F.3d at 125;
Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 608 (2d Cir. 2006). The burden at the
summary judgment stage for Plaintiff is “‘minimal’ and ‘de minimis,’” and “the court’s role in
evaluating a summary judgment request is to determine only whether proffered admissible
evidence would be sufficient to permit a rational finder of fact to infer a retaliatory motive.”
Kwan, 737 F.3d at 844 (quoting Jute, 420 F.3d at 173).
National Grid does not dispute that Plaintiff’s termination was an adverse employment
action but disputes that Plaintiff engaged in protected activity, that it had knowledge of any such
activity, or that there was a causal connection between any protected activity and Plaintiff’s
termination. (Def. Mem. 14.)
1.
Protected activity and National Grid’s knowledge
Plaintiff argues that she engaged in protected activity by (1) complaining to Zarcone, an
area supervisor, about her co-worker Mondello’s conduct on an unspecified date, (2)
complaining to Dwyer, a supervisor in charge of health and safety, in March 2009 and again in
“late 2009” about Delach’s mistreatment of her, and (3) complaining to Vice President Hohlman
in mid-2009. (Pl. Opp’n Mem. 23.) National Grid contends that Plaintiff’s complaints to Dwyer
39
and Hohlman were not about gender-based discrimination, and that her complaint to Zarcano did
not evidence a “good faith, reasonable belief” that the single incident of Mondello yelling at her
over the telephone violated Title VII. (Def. Reply 1–2.)
A.
Protected Activity
Plaintiff is not required to make a formal complaint about discrimination in order to
establish that she engaged in protected activity. “[T]he law protects employees . . . in the making
of informal protests of discrimination, including making complaints to management . . . .”
Summa, 708 F.3d at 126–127 (quoting Gregory v. Daly, 243 F.3d 687, 700 (2d Cir. 2001)); see
also Amin v. Akzo Nobel Chemicals, Inc., 282 F. App’x 958, 961 (2d Cir. 2008) (“Informal
complaints to management as to discrimination on a basis prohibited by Title VII are protected
activity.” (citing Cruz v. Coach Stores, Inc., 202 F.3d 560, 566 (2d Cir. 2000))); Gregory, 243
F.3d at 700–01 (“The law protects employees in the filing of formal charges of discrimination as
well as in the making of informal protests of discrimination, including making complaints to
management, so long as the employee has a good faith, reasonable belief that the underlying
challenged actions of the employer violated the law.” (alteration, citation and internal quotation
marks omitted)); St. Juste v. Metro Plus Health Plan, --- F. Supp. 2d ---, ---, 2014 WL 1266306,
at *26 (E.D.N.Y. Mar. 28, 2014) (“The complaint can be informal — an employee does not need
to lodge a formal complaint of discrimination to engage in protected activity.” (alteration,
citation and internal quotation marks omitted) (citing cases)).
However, where an employee claims gender-based discrimination, the employee’s
informal complaints to management must be gender-based, and not a general complaint about
mistreatment by a supervisor or co-worker. See Summa, 708 F.3d at 126 (noting that a plaintiff
must establish “that she possessed a good faith, reasonable belief that the [conduct complained
of] was unlawful under that statute.” (quoting Galdieri–Ambrosini v. Nat’l Realty & Dev. Corp.,
40
136 F.3d 276, 292 (2d Cir. 1998)); Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98,
108 (2d Cir. 2011) (noting that “while an employee’s complaints about discrimination may be
informal, they cannot be so vague or ‘generalized’ that the employer could not ‘reasonably have
understood[] that the plaintiff’s complaint was directed at conduct prohibited by Title VII.”
(alteration and citation omitted); see also Ellis, 975 F. Supp. 2d at 280 (“When making the
complaint, Plaintiff must do so in ‘sufficiently specific terms so that the employer is put on
notice that the plaintiff believes he or she is being discriminated against on the basis of’” the
protected status. (quoting Brummell v. Webster Cent. Sch. Dist., No. 06-CV-6437, 2009 WL
232789, at *6 (W.D.N.Y. Jan. 29, 2009))); Int’l Healthcare Exch., Inc. v. Global Healthcare
Exch., LLC, 470 F. Supp. 2d 345, 357 (S.D.N.Y. 2007) (“ambiguous complaints that do not
make the employer aware of alleged discriminatory misconduct do not constitute protected
activity”).
Plaintiff’s complaints to Dwyer, that she was having problems with “the way [she] was
being treated,” and the “unnecessary yelling,” by Delach, and her complaint to Hohlman that she
“was having problems with [her] supervisor,” never suggested that she believed that this conduct
was motivated by her gender, or that she felt targeted because she was a woman. Therefore, the
complaints Plaintiff made to these two individuals are not protected activity. See Rojas, 660
F.3d at 108 (plaintiff’s complaint to her supervisor that her co-worker “is making my life
miserable’ and ‘you need to take action,’ meeting with her employer’s director of human
resources where she ‘started to explain . . . about the hostile environment and work conditions in
[her] work place’ but was interrupted,” and email “ indicating that [she] wanted to discuss
[s]exual [m]isconduct” insufficient for employer to have reasonably understood that she was
complaining about sexual harassment); Batchelor, --- F. Supp. 2d at ---, (finding that plaintiff did
41
not engage in protected activity in saying, “That’s not fair. That’s not the way you do
business.”); Thomas v. iStar Fin., Inc., 438 F. Supp. 2d 348, 365 (S.D.N.Y. 2006) (finding the
plaintiff’s “general allegations of harassment unrelated to” his protected status were “not
protected activity under Title VII”), aff’d, 629 F.3d 276 (2d Cir. 2010). In addition, counsel for
Plaintiff conceded at oral argument that the complaints to Dwyer and Hohlman did not appear to
reference gender or Plaintiff’s belief that the conduct she complained of was discriminatory.
Plaintiff’s complaint to Zarcano, the supervisor of her co-worker Mondello that Mondello
screamed and yelled at her over the telephone in an “unprofession[al]” and “abominable” manner
referenced Plaintiff’s belief that Mondello’s conduct was motivated by Plaintiff’s gender.
Plaintiff told the supervisor that “[i]f I was a man, he wouldn’t be yelling at me. He feels he
could yell at me because I was a woman.” (See Pl. Dep. 198:9–10.) This is sufficient to establish
that Plaintiff’s complaint about her co-worker Mondello’s conduct was gender-based.
B.
National Grid’s Knowledge
Plaintiff has also satisfactorily shown that National Grid had general corporate
knowledge of this protected activity. Zarcono’s knowledge as a supervisor that Plaintiff had
complained about her co-worker’s conduct is sufficient to establish general corporate knowledge.
See Papelino v. Albany Coll. of Pharmacy of Union Univ., 633 F.3d 81, 92 (2d Cir.
2011) (finding that plaintiff’s complaint to a high-ranking school official was sufficient to
establish corporate knowledge); Hill v. Rayboy-Brauestein, 467 F. Supp. 2d 336, 362 (S.D.N.Y.
2006) (finding general corporate knowledge where plaintiff’s supervisor “admit[ted] knowing
that Plaintiff had previously filed a discrimination action”); Perkins v. Mem’l Sloane-Kettering
Cancer Ctr., No. 02-CV-6493, 2005 WL 2453078, at *18 (S.D.N.Y. Sept. 30, 2005) (finding
general corporate knowledge where plaintiff met with a “Senior Employee Relations Specialist”
to discuss her co-worker’s alleged harassment); Taylor v. Lenox Hill Hosp., No. 00-CV-3773,
42
2003 WL 1787118, at *7 (S.D.N.Y. Apr. 3, 2003) aff’d, 87 F. App’x 786 (2d Cir. 2004) (finding
general corporate knowledge where defendant’s benefits coordinator had knowledge of the
plaintiff’s protected activity, even though “[t]here is no evidence in the record as to whether [the
benefits coordinator] ever relayed the conversation to anyone else in the Hospital”). Plaintiff
does not have to prove that specific actors knew of the protected activity as long as Plaintiff can
demonstrate general corporate knowledge. See Summa, 708 F.3d at 125–26 (2d Cir. 2013)
(“Nothing more is necessary than general corporate knowledge that the plaintiff has engaged in a
protected activity,” (quoting Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 116 (2d Cir. 2000)));
Papelino., 633 F.3d at 92 (“Even if the agents who carried out the adverse action did not know
about the plaintiff’s protected activity, the ‘knowledge’ requirement is met if the legal entity was
on notice.”).
Thus, while Plaintiff’s complaints to Dwyer and Hohlman were not protected activity,
because they were not conveyed in a manner that National Grid could reasonably have
understood that Plaintiff was complaining about gender-based discrimination or harassment,
Plaintiff’s complaint to Zarcono, her co-worker Mondello’s supervisor, was protected activity.
2.
Causal connection
Plaintiff argues that a causal connection between her protected activity and her
termination can be established based on the fact that National Grid terminated her at the first
opportunity following Plaintiff’s protected activity. (Pl. Opp’n Mem. 23–24.) National Grid
asserts that the individuals who conducted the investigation leading to Plaintiff’s termination
were not actually aware of any complaints of harassment made by Plaintiff. (Def. Mem. 13.)
“[A] plaintiff can indirectly establish a causal connection to support a discrimination or
retaliation claim by showing that the protected activity was closely followed in time by the
adverse employment action.” Gorzynski, 596 F.3d at 110–11 (quoting Gorman-Bakos v. Cornell
43
Coop. Extension of Schenectady Cnty., 252 F.3d 545, 554 (2d Cir. 2001)); Kim v. Columbia
Univ., 460 F. App’x 23, 25 (2d Cir. 2012) (“[T]emporal proximity between protected activity
and adverse action may be sufficient to satisfy the causality element of a prima facie retaliation
claim . . . .”); Feingold, 366 F.3d at 156 (“[T]he requirement that [plaintiff] show a causal
connection between his complaints and his termination is satisfied by the temporal proximity
between the two.”).
In this case, Plaintiff does not argue that a causal connection can be established by
temporal proximity, but rather argues that National Grid terminated her at their earliest
opportunity subsequent to her complaint to Zarcano about Mondello’s conduct — when they
received an anonymous complaint about the installation of underground electrical service at
Plaintiff’s home. 19 (Pl. Opp’n Mem. 23–24 (citing Curcio v. Roosevelt Union Free Sch. Dist.,
19
Several district courts have found that a causal connection between an employee’s
protected activity and the employer’s adverse action can be established when the employer acts
at its “first opportunity” to take an adverse action. See Curcio v. Roosevelt Union Free Sch.
Dist., No. 10-CV-5612, 2012 WL 3646935, at *14 (E.D.N.Y. Aug. 22, 2012) (finding a causal
connection where plaintiff made a complaint to EEOC and was not scheduled to receive an
evaluation or be considered for tenure until the following year); Blanco v. Brogan, 620 F. Supp.
2d 546, 556 (S.D.N.Y. 2009) (defendant’s failure to promote plaintiff, decided more than three
months after plaintiff filed an EEO complaint, was sufficient to establish a causal connection
because “it would have been very difficult for the Police Department here to retaliate against
Plaintiff during the time period except in terms of promotion” because “police departments
generally have well-defined procedures and labor union agreements which prevent management
from taking arbitrary adverse employment actions against their employees”); Kanhoye v. Altana
Inc., 686 F. Supp. 2d 199, 209 (E.D.N.Y. 2009) (“the December review was the first opportunity
for defendants to evaluate Kanhoye after he began complaining of discrimination; a jury could
conclude that an earlier opportunity to retaliate was unavailable”); Quinby v. WestLB AG, No.
04-CV-7406, 2007 WL 1153994, at *13 (S.D.N.Y. Apr. 19, 2007) (finding that the plaintiff “was
denied her bonus at the first available opportunity,” where “bonus determinations happen
annually at a fixed point in time” and “a rational factfinder could conclude that [the defendant]
attempted to replace [the plaintiff] in early 2003 but, lacking an acceptable replacement, waited
until bonuses were announced to effect the termination.”). The Second Circuit has not opined on
the issue, see Bucalo v. Shelter Island Union Free Sch. Dist., 691 F.3d 119, 131 (2d Cir. 2012)
(declining to reach this issue).
44
No. 10-CV-5612, 2012 WL 3646935, at *14 (E.D.N.Y. Aug. 22, 2012)).) However, the absence
of any evidence in the record indicating when Plaintiff complained to Zarcano precludes any
inference that National Grid acted at the “earliest opportunity” subsequent to the complaint.
Although Plaintiff argues in her memorandum of law that this conduct took place in Fall 2009,
(Pl. Opp’n Mem. 5), the cited deposition testimony shows that Plaintiff stated that she was “not
exactly sure” when this incident occurred, and when asked if she recalled what year, stated
“2000 – no. No.” (Pl. Dep. 197:24–198:4.)
Even assuming that Plaintiff complained to Zarcano in Fall 2009, National Grid correctly
notes that there is no evidence that the decision-makers involved in Plaintiff’s investigation and
termination in February 2011 had any knowledge of Plaintiff’s complaint. In order to establish
a causal connection, Plaintiff must show that the person responsible for her termination knew of
her complaint, or was influenced by someone who knew of the complaint. 20 See Henry, 616
F.3d at 148 (“[A] jury may ‘find retaliation even if the agent denies direct knowledge of a
plaintiff’s protected activities, for example, so long as the jury finds that the circumstances
evidence knowledge of the protected activities or the jury concludes that an agent is acting
explicitly or implicit[ly] upon the orders of a superior who has the requisite knowledge.’”
(alteration in original) (quoting Gordon, 232 F.3d at 117)).
National Grid points to the sworn statements of Dorsey, McConnell and Biesner that
they “were not aware of any complaints of gender discrimination, harassment, or retaliation by”
20
Plaintiff’s assertion that “the law is well settled that a plaintiff need only show general
corporate knowledge of the protected activity” to establish causation, (Pl. Opp’n Mem. 25 (citing
Summa v. Hofstra Univ., 708 F.3d 111, 126–26 (2d Cir. 2013)), is misplaced. The cited portion
of Summa discussed only the “employer knowledge” prong of the plaintiff’s Title VII retaliation
claim, not the causation prong.
45
Plaintiff to show that these decision makers lacked knowledge. 21 (Def. 56.1 ¶¶ 25–26; Def.
Reply 3–4.) While a decision-maker’s lack of knowledge of a plaintiff’s protected activity can
suggest the lack of a causal connection, it is not dispositive of the issue. A plaintiff can show a
causal connection even where the decision-makers lacked actual knowledge of her protected
activity by showing that the decision-makers “act[ed] pursuant to encouragement by a superior
(who has knowledge) to disfavor the plaintiff.” Summa, 708 F.3d at 127 (emphasis omitted)
(quoting Henry, 616 F.3d at 148)); see also Papelino, 633 F.3d at 92 (“[W]hile lack of
knowledge on the part of particular agents who carried out the adverse action is evidence of lack
of causal connection, a plaintiff may counter with evidence that the decision-maker was acting
on orders or encouragement of a superior who did have the requisite knowledge.”).
District courts in this Circuit have also found that a plaintiff can show that the decisionmakers were motivated by retaliation by providing evidence that they were “overly deferential”
or influenced by a subordinate or co-worker who harbored retaliatory or discriminatory animus, a
situation often described as a “cat’s paw” scenario. See Kregler v. City of New York, No. 08-CV6893, 2013 WL 6620767 (S.D.N.Y. Dec. 9, 2013) (“In a cat’s paw scenario, a nondecisionmaker
with a discriminatory motive dupes an innocent decisionmaker into taking action against the
plaintiff.” (quoting Saviano v. Town of Westport, No. 04-CV-522, 2011 WL 4561184, at *7 (D.
Conn. Sept. 30, 2011)); Siani v. State Univ. of New York at Farmingdale, --- F. Supp. 2d ---, ---,
2014 WL 1260718, at *16 (E.D.N.Y. Mar. 28, 2014) (“an employer cannot shield itself from
liability . . . by using a purportedly independent person or committee as the decisionmaker
21
Plaintiff does not dispute these statements, but contends that “National Grid”
nonetheless had knowledge of her complaints, as she had complained to three different
managers. (Pl. 56.1 ¶¶ 25–26.) As noted above, this argument is misplaced in the context of
establishing causation.
46
where th[at] decisionmaker merely serves as the conduit, vehicle, or rubber stamp by which
another achieves his or her unlawful design.” (quoting Dedmon v. Staley, 315 F.3d 948, 949 n.2
(8th Cir. 2003))).
Plaintiff offers no evidence that any of the decision-makers involved in the decision to
terminate her were acting with the encouragement of a superior who did have the requisite
knowledge, or were influenced by a subordinate or co-worker with knowledge of Plaintiff’s
complaint to Zarcano. See Seivright v. Montefiore Med. Ctr., Hosp. of Albert Einstein Coll. of
Med., No. 11-CV-8934, 2014 WL 896744, at *11–12 (S.D.N.Y. Mar. 3, 2014) (finding that
plaintiff had not established a causal connection between her protected activity and termination
where “there is no evidence that any of the individuals involved in her attempted return to
Montefiore or termination knew that she had engaged in any of the listed protected activities,”
and plaintiff presented no evidence “of influence or encouragement” by a superior with
knowledge of the protected activity); Widomski v. State Univ. of N.Y. (SUNY) at Orange, 933 F.
Supp. 2d 534, 549 (S.D.N.Y. 2013) (finding no causal connection where there was no “evidence
that the alleged retaliator . . . played a ‘meaningful role’ in the Board’s decision or that the Board
was ‘overly deferential,’ such that Defendant might be liable under a so-called ‘cat’s paw
scenario.’”), aff’d, 748 F.3d 471 (2d Cir. 2014).
In sum, even assuming Plaintiff’s protected activity of complaining to Zarcano about the
conduct of a male co-worker took place in Fall 2009, Plaintiff cannot show a causal connection
between this complaint and her termination, since there is no evidence that the decision-makers
who investigated and ultimately terminated Plaintiff had actual knowledge of her complaint,
acted with the encouragement of a superior with such knowledge, or at the behest of a
subordinate with such knowledge. Because Plaintiff cannot show a causal connection, she has
47
failed to establish a prima facie case of retaliation. The Court grants National Grid’s motion for
summary judgment as to Plaintiff’s retaliation claim.
d.
Hostile work environment claim against National Grid — Title VII and
NYSHRL
Plaintiff claims that National Grid subjected her to a hostile work environment on the
basis of gender in violation of Title VII and the NYSHRL. (Compl. ¶¶ 43, 45.) Plaintiff argues
that she was “subjected to continuous and sustained abuse over a period of nearly three years,”
based on Delach’s (1) excluding Plaintiff from informal and formal meetings with safety
supervisors, (2) refusing to provide Plaintiff with updates concerning safety, work methods,
incidents and accidents, (3) “regularly demanding” that Plaintiff perform administrative tasks,
(4) regularly screaming at and speaking to Plaintiff in a condescending manner in front of other
employees, (5) complaining about Plaintiff missing work to attend medical appointments, and (6)
criticizing Plaintiff’s performance and suggesting that she apply for a position that would be a
demotion. (Pl. Opp’n Mem. 17–18.) Plaintiff also refers to three comments made by three
employees over the course of three months referencing Plaintiff’s buttocks and a female coworker’s breasts. (Id. at 18 (citing Setelius Aff. ¶¶ 15–16).)
In order to establish a Title VII hostile work environment claim, a plaintiff must produce
evidence “that the complained of conduct (1) is objectively severe or pervasive — that is, creates
an environment that a reasonable person would find hostile or abusive; (2) creates an
environment that the plaintiff subjectively perceives as hostile or abusive; and (3) creates such an
environment because of the plaintiff’s” protected characteristic. 22 Robinson v. Harvard Prot.
22
The same standards apply to Plaintiff’s NYSHRL hostile environment claim. See
Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 20 n.4 (2d Cir. 2014) (“The same
standards [as are applied to Title VII] apply to the plaintiffs’ hostile environment claims arising
under the NYSHRL . . . .” (citing, inter alia, Whidbee v. Garzarelli Food Specialties, Inc., 223
48
Servs., 495 F. App’x 140, 141 (2d Cir. 2012) (quoting Patane v. Clark, 508 F.3d 106, 113 (2d
Cir. 2007)). To withstand summary judgment, a plaintiff must produce evidence that “the
workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently
severe or pervasive to alter the conditions of the victim’s employment and create an abusive
working environment.” Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 20 (2d
Cir. 2014) (quoting Gorzynski, 596 F.3d at 102).
While “‘the central statutory purpose [of Title VII was] eradicating discrimination’ in
employment, Title VII ‘does not set forth a general civility code for the American
workplace.’” Redd, 678 F.3d at 176 (alteration in original) (quoting Franks v. Bowman Transp.
Co., 424 U.S. 747, 771 (1976) and Burlington Northern, 548 U.S. at 68). A plaintiff may only
recover on a hostile work environment claim if the hostile work environment occurs because of
an employee’s protected characteristic, such as her gender. Rivera, 743 F.3d at 20 (citing Brown
v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001)).
In addition, in order to establish employer liability under Title VII and the NYSHRL for
hostile actions taken by employees, a plaintiff must establish that the hostile work environment
can be imputed to the employer. See Summa, 708 F.3d at 124 (“In order to prevail on a hostile
work environment claim, a plaintiff must make two showings: (1) that the harassment was
sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an
abusive working environment and (2) that there is a specific basis for imputing the conduct
F.3d 62, 69 (2d Cir. 2000))); Summa, 708 F.3d at 123–24 (“Hostile work environment claims
under both [federal law] and the NYSHRL are governed by the same standard.” (citing Schiano
v. Quality Payroll Sys., Inc., 445 F.3d 597, 609 (2d Cir. 2006))). However, as discussed infra in
n. 25, it is not clear whether the Faragher/Ellerth affirmative defense, available to Defendants
under Title VII, is applicable in the context of a NYSHRL claim. The Court therefore addresses
the availability of this defense to Plaintiff’s NYSHRL claim separately below.
49
creating the hostile work environment to the employer.” (citing Duch v. Jakubek, 588 F.3d 757,
762 (2d Cir. 2009))); see also Vance v. Ball State Univ., 570 U.S. ---, ---, 133 S. Ct. 2434, 2443
(2013) (explaining under what circumstances an employer may be held liable for harassment by
an employee).
Because National Grid is entitled to the affirmative Faragher/Ellerth defense, the Court
declines to decide if the evidence is sufficient to create a genuine issue of fact as to whether
Delach created a hostile work environment because of Plaintiff’s gender.
i.
National Grid is entitled to the Faragher/Ellerth defense
Under Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of
Boca Raton, 524 U.S. 775 (1998), if a supervisor’s harassment culminates in a tangible adverse
employment action, the employer is strictly liable for that supervisor’s harassment. See Redd,
678 F.3d at 182 (“If [a supervisor’s] ‘harassment culminate[d] in a tangible employment action,
such as discharge, demotion, or undesirable reassignment,’ the employer is held strictly liable,
and ‘[n]o affirmative defense is available.” (second and third alteration in original) (quoting
Ellerth, 524 U.S. at 765, and citing Faragher, 524 U.S. at 808); see also Vance, 570 U.S. ---, 133
S. Ct. at 2439 (same). But if no tangible employment action is taken as a result of the
harassment, or if “any tangible employment action taken against the employee was not part of
the supervisor’s discriminatory harassment,” the employer may raise an affirmative defense.
Gorzynski, 596 F.3d at 103 n.3; see Redd, 678 F.3d at 183 (acknowledging that “the employer
may avoid liability by establishing [this] affirmative defense on which it has the burden of proof”
but finding disputed issues of fact precluded summary judgment based on the defense).
To establish the Faragher/Ellerth affirmative defense, the employer must show “(a) that
the employer exercised reasonable care to prevent and correct promptly any sexually harassing
50
behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the employer or to avoid harm otherwise.”
Townsend v. Benjamin Enterprises, Inc., 679 F.3d 41, 50 (2d Cir. 2012) (citing Faragher, 524
U.S. at 807 and Ellerth, 524 U.S. at 765); Redd, 678 F.3d at 182 (same); see also Vance, 570
U.S. ---, 133 S. Ct. at 2439 (restating two prongs of Faragher/Ellerth defense) Although “[t]he
defendant bears the ultimate burden of persuasion on this [second] element, . . . it may carry that
burden by first introducing evidence that the plaintiff failed to avail herself of the defendant’s
complaint procedure and then relying on the absence or inadequacy of the plaintiff’s justification
for that failure.” Ferraro v. Kellwood Co., 440 F.3d 96, 103 (2d Cir. 2006) (citing Leopold v.
Baccarat, Inc., 239 F.3d 243, 246 (2d Cir. 2001)); see Leopold, 239 F.3d at 246 (“Once an
employer has satisfied its initial burden of demonstrating that an employee has completely failed
to avail herself of the complaint procedure, the burden of production shifts to the employee to
come forward with one or more reasons why the employee did not make use of the
procedures.”).
Here, it is undisputed that Delach played no role in Plaintiff’s termination nor took any
tangible employment action against Plaintiff. As a result, any harassment or other conduct by
Delach did not culminate in Plaintiff’s termination or any other tangible employment action, as
required to hold National Grid strictly liable for Delach’s conduct. Consequently, National Grid
may raise the affirmative Faragher/Ellerth defense. See Ferraro v. Kellwood Co., 440 F.3d 96,
102 (2d Cir. 2006) (noting that the plaintiff’s demotion and reduction of salary were tangible
employment actions, but finding that, because the employer had established that “these actions
were independent of [her supervisor’s] discriminatory harassment” of the plaintiff, the employer
was entitled to raise the Faragher/Ellerth defense); Stofsky v. Pawling Cent. Sch. Dist., 635 F.
51
Supp. 2d 272, 295 (S.D.N.Y. 2009) (finding that the defendants were entitled to raise the
Faragher/Ellerth defense with plaintiff whose reassignment was found to be a tangible
employment action, because “Plaintiff has completely failed to rebut the evidence that she was
reassigned for reasons unrelated to any alleged harassment”); Clarke v. Mount Sinai Hosp., No.
05-CV-566, 2007 WL 2816198, at *9 (E.D.N.Y. July 13, 2007) (“Gomez took no tangible
employment action against plaintiff and plaintiff’s discharge was not related to Gomez’s alleged
sexual advances. Thus, defendant has properly raised [the] Faragher/Ellerth affirmative
defense.”); see also Gorzynski, 596 F.3d at 103 (noting that an employer may raise the
Faragher/Ellerth defense only if “any tangible employment action taken against the employee
was not part of the supervisor’s discriminatory harassment,” but declining to “address whether
[the plaintiff’s] termination was linked to the supervisor’s discriminatory harassment,” because
the defendants had not met their burden to establish the defense anyway).
1.
National Grid exercised reasonable care
As to the first prong of the defense, National Grid argues that it exercised reasonable care
to prevent and correct any harassing behavior because it had an anti-harassment policy during the
period in question. (Def. Mem. 19; see National Grid Human Resources Policy Guidelines
regarding Discrimination and Harassment, issued on October 1, 2008 (“Antidiscrimination
Policy,” annexed to Dorsey Aff. as Ex. B).) “Although not necessarily dispositive, the existence
of an anti-harassment policy with complaint procedures is an important consideration in
determining whether the employer has” exercised reasonable care to prevent and correct any
discriminatory harassment. See Mack v. Otis Elevator Co., 326 F.3d 116, 128 (2d Cir. 2003)
(quoting Caridad v. Metro-N. Commuter R.R., 191 F.3d 283, 295 (2d Cir. 1999))), abrogated on
other grounds by Vance, 570 U.S. ---, 133 S. Ct. 2434. The Antidiscrimination Policy, in
52
pertinent part, defines “discrimination and harassment” as “verbal or physical conduct that
degrades, shows hostility or aversion toward or discriminates toward an individual because of his
or her . . . gender,” and provides that any employee “should file a complaint if you feel that you
are being discriminated against because of sexual harassment, . . . gender, sexual orientation, [or]
gender identity,” either by confronting the individual or by calling an internal ethics hotline or
the “AlertLine.” (Antidiscrimination Policy 1–2.) It further provides that “each member of
management is responsible for . . . [e]nsuring that complaints brought to their attention are
promptly reported to the Legal Department or Human Resources.” (Id.)
National Grid’s Antidiscrimination Policy is similar to policies that have been found to
satisfy the first prong of the Faragher/Ellerth defense. See Edrisse v. Marriott Int’l, Inc., 757 F.
Supp. 2d 381, 388 (S.D.N.Y. 2010) (finding that employer-defendant acted reasonably to prevent
harassment where its “anti-harassment policy, in force during the events of this case, expressly
prohibited the sort of harassment of which plaintiff complains, and the company provided
numerous avenues, including anonymous hotlines, by which employees could raise harassment
grievances to persons including and besides harassing supervisors”); O’Dell v. Trans World
Entm’t Corp., 153 F. Supp. 2d 378, 389 (S.D.N.Y. 2001) (employer’s antidiscrimination policy
that “informed plaintiff that sexual harassment would not be tolerated and that it was her
responsibility to advise management of potential sexual harassment . . . [and that] provided three
harassment reporting mechanisms” sufficient to establish first prong of Faragher/Ellerth
defense), aff’d, 40 F. App’x 628 (2d Cir. 2002).
Plaintiff acknowledges that she was aware of the policy and the fact that she could make
a complaint as specified in the Antidiscrimination Policy, as well as to the human resources
department, (see Pl. Dep. 64:20–66:9), and does not argue that the Antidiscrimination Policy was
53
ineffective. Rather, Plaintiff asserts that National Grid did not exercise reasonable care, because
she “complained about harassment on no less than four occasions.” 23 (Pl. Opp’n Mem. 19.)
Although evidence of what an employer does when faced with an actual complaint is another
important factor in determining whether a defendant can satisfy the first prong of its affirmative
defense, here there is insufficient evidence that National Grid received an actual gender
harassment complaint. See O’Dell, 153 F. Supp. 2d at 389 (“Before an employer can reasonably
respond to sexual harassment, it must have adequate notice of the harassment.”) Plaintiff made
complaints to two supervisors on three occasions regarding Delach’s conduct, and also made a
comment to internal investigators from National Grid’s ethics and compliance and human
resources departments that she believed the purpose of them meeting with her was to discuss
Delach’s conduct. But, based on Plaintiff’s description of these incidents, none of these
complaints were about discriminatory harassment, as opposed to generalized complaints or
statements about Delach, such that National Grid would have had adequate notice of the
complaint as required to trigger a duty to use reasonable care to respond to the complaint. 24 See
23
Plaintiff makes this argument as to both prongs of the Faragher/Ellerth defense. (See
Pl. Opp’n Mem. 19.) Although Plaintiff does not elaborate on what these four occasions were,
the Court understands Plaintiff to mean the two complaints to Dwyer, a health and safety
supervisor, that she was having “problems with” Delach, the complaint to Hohlman, a National
Grid vice president, that she was having “problems with” her supervisor, and the comment at a
meeting to Dorsey, a lead analyst in the National Grid Ethics and Compliance Office, and
McConnell, a lead program manager in the human resources department, that she thought they
had asked to meet with her to discuss “Delach’s conduct towards me.”
24
Plaintiff’s complaint to a third individual, Zarcano, involved a single incident of
mistreatment by one of Plaintiff’s co-workers, not her supervisor Delach, and National Grid’s
failure to respond to a report of mistreatment by a co-worker cannot render it liable for the
allegedly gender-based conduct of Delach. Plaintiff does not assert and cannot establish that her
co-worker Mondello’s single conduct of screaming at Plaintiff over the telephone comprises a
hostile work environment. Therefore Plaintiff’s complaint about Mondello’s conduct cannot, by
54
Schmidt v. State Univ. of New York at Stonybrook, No. 02-CV-6083, 2006 WL 1307925, at *14
(E.D.N.Y. May 9, 2006) (finding that defendant was not on notice of plaintiff’s complaint about
discriminatory harassment where “Plaintiff provided only general comments that she was
‘uncomfortable’ and felt Miller was ‘overbearing,’ which fall short of establishing constructive
notice of harassment.”); O’Dell, 153 F. Supp. 2d at 391 n.6 (finding that statements to other
supervisors urging them not to promote her allegedly harassing supervisor did not adequately
notify the employer that plaintiff was complaining about sexual harassment, and noting that “[a]n
employer is not clairvoyant and cannot be expected to divine that a general complaint about an
employee is a masked grievance of sexual harassment”); cf. Whidbee v. Garzarelli Food
Specialties, Inc., 223 F.3d 62, 72 (2d Cir. 2000) (“Once an employer has knowledge of a racially
combative atmosphere in the workplace, he has a duty to take reasonable steps to eliminate it.”
(alteration omitted) (quoting Snell v. Suffolk County, 782 F.2d 1094, 1104 (2d Cir. 1986))).
Because National Grid presents evidence of a comprehensive Antidiscrimination Policy,
and there is no evidence that it had adequate notice of any complaint by Plaintiff of harassing
conduct, Plaintiff cannot show that National Grid failed to exercise reasonable care. National
Grid has established the first prong of the Faragher/Ellerth defense.
2.
Plaintiff unreasonably did not take advantage of the
Antidiscrimination Policy
As to the second prong, National Grid has shown that Plaintiff unreasonably failed to
take advantage of the avenue for complaints, by making only generalized complaints about
Delach’s conduct to two different supervisors, on three occassions. See E.E.O.C. v. Boh Bros.
Const. Co., L.L.C., 731 F.3d 444, 466 (5th Cir. 2013) (noting that “the evidence was thin on th[e]
itself, negate Defendant’s assertion that it is entitled to the Faragher/Ellerth defense with respect
to the alleged harassment by Delach.
55
[second Faragher/Ellerth] prong: Woods’s initial informal complaints to Carpenter made no
reference to sexual harassment, and Woods did not raise the issue with Duckworth until months
later”). Title VII is designed to prevent and remediate discriminatory conduct in the workplace.
To that end, the Faragher/Ellerth defense has developed as a way to recognize and create
incentives for employers who take proactive measures to prevent discrimination. See Cox v.
Onondaga Cnty. Sheriff’s Dep’t, --- F. App’x ---, ---, 2014 WL 3610747, at *9 (2d Cir. July 23,
2014) (“Employers are under an independent duty to investigate and curb . . . harassment by
lower level employees of which they are aware. This is because the primary purpose of Title VII
‘is not to provide redress but to avoid harm.’” (citing Duch v. Jakubek, 588 F.3d 757, 762 (2d
Cir. 2009) and quoting Faragher, 524 U.S. at 806)); see also Faragher, 524 U.S. at 803
(“”Although Title VII seeks to make persons whole for injuries suffered on account of unlawful
employment discrimination, its primary objective, like that of any statute meant to influence
primary conduct, is not to provide redress but to avoid harm.”).
Plaintiff’s comments to two different supervisors about Delach’s conduct, and her
comment to internal investigators about Delach’s conduct, cannot reasonably be described as an
effort to utilize National Grid’s Antidiscrimination Policy. These complaints were generalized
complaints about Delach’s conduct that in no way referenced Plaintiff’s belief that such conduct
was discriminatory or otherwise gender-based. Where, as here, there is a clearly established
policy that provided Plaintiff with an avenue for making a formal complaint about discriminatory
harassment, and as Plaintiff concedes she was aware of the policy, Plaintiff cannot seek a remedy
in federal court since she did not provide National Grid with the opportunity to provide a remedy
in the workplace.
56
3.
Plaintiff has not shown a credible fear of retaliation
Plaintiff asserts that she “did not report Delach to human resources because [she] feared
retaliation,” and because she was advised by Marinello that Delach “was concerned that I would
report his mistreatment . . . to human resources.” (Setelius Aff. ¶ 14.)
A plaintiff’s failure to report discriminatory harassment may be excused where the
plaintiff “has ‘a credible fear that her complaint would not be taken seriously or that she would
suffer some adverse employment action as a result of filing a complaint.’” Chin-McKenzie v.
Continuum Health Partners, 876 F. Supp. 2d 270, 285 (S.D.N.Y. 2012) (citing Leopold v.
Baccarat, 239 F.3d 243, 246 (2d Cir. 2001). To establish that a credible fear precluded her from
making an internal complaint, “a plaintiff must produce evidence showing that his or her fear is
‘credible,’ such as proof ‘that the employer has ignored or resisted similar complaints or has
taken adverse actions against employees in response to such complaints.’” Finnerty v. William
H. Sadlier, Inc., 176 F. App’x 158, 163 (2d Cir. 2006) (quoting Leopold, 239 F.3d at 246)).
Here, other than her conclusory allegation that she did not go to human resources because
she feared retaliation, Plaintiff has not presented any evidence to substantiate her assertion that
she had a credible fear of retaliation, such as evidence about the relationship between Delach and
human resources that caused her to fear retaliation, or evidence that others who lodged
complaints faced retaliation, or any other factual basis from which Plaintiff could reasonably
have concluded that she would face retaliation if she complained to human resources about
Delach’s conduct. See Leopold, 239 F.3d at 246 (finding that plaintiff had not established a
credible fear of retaliation for making a complaint of harassment, where plaintiff “simply
asserted her apprehension that she would be fired for speaking up,” and holding that “[s]uch
conclusory assertions fail as a matter of law to constitute sufficient evidence to establish that her
fear was credible — that her complaint would not be taken seriously or that she would suffer
57
some adverse employment action.” (citation and internal quotation marks omitted)); Stofsky v.
Pawling Cent. Sch. Dist., 635 F. Supp. 2d 272, 296 (S.D.N.Y. 2009) (“Because Plaintiff did not
come forward with any . . . evidence [that the employer has ignored or resisted similar
complaints or has taken adverse actions against employees in response to such complaints] in
support of her view that her failure to complain was reasonable, she cannot defeat Defendants’
Faragher/Ellerth defense.”); O’Dell, 153 F. Supp. 2d at 392 (“conclusory allegations of feared
repercussions” insufficient to establish that plaintiff had a credible fear that prevented her from
making an internal complaint of sexual harassment (quoting Fierro v. Saks Fifth Ave., 13 F.
Supp. 2d 481, 492 (S.D.N.Y. 1998))), aff’d, 40 F. App’x 628 (2d Cir. 2002). Plaintiff has not
overcome National Grid’s showing that she unreasonably failed to take advantage of National
Grid’s Antidiscrimination Policy.
Thus, even if Plaintiff could establish that Delach’s conduct created a hostile work
environment, National Grid is entitled to summary judgment as to Plaintiff’s Title VII and
NYSHRL claims of hostile work environment on the basis of the Faragher/Ellerth affirmative
defense. 25
25
Whether the Faragher/Ellerth defense is available to claims brought under the
NYSHRL is not a fully-settled question. In an unpublished 2007 decision, the Second Circuit
noted that “New York State law is not clear as to the application of this defense to cases under
the Executive Law,” and declined to find that a defendant was entitled to the Faragher/Ellerth
defense under NYSHRL, remanding instead to state court. McPherson v. NYP Holdings, Inc.,
227 F. App’x 51, 53–54 (2d Cir. 2007) (citing Perks v. Town of Huntington, 251 F. Supp. 2d
1143, 1159 (E.D.N.Y. 2003) and Vitale v. Rosina Food Products Inc., 727 N.Y.S.2d 215, 219
(App. Div. 2001)). The New York Court of Appeals has twice suggested, without holding, that
the Faragher/Ellerth defense is available under the NYSHRL. In Forrest v. Jewish Guild for the
Blind, the court noted, “[s]ince plaintiff has failed to establish the elements of a hostile work
environment claim with respect to either her state or city causes of action, we need not address
the affirmative defense to such a claim against an employer — that the employer exercised
reasonable care to prevent and correct promptly discriminatory conduct committed by its
supervisory personnel, such as by promulgating an antidiscrimination policy with complaint
58
procedure, and that the plaintiff unreasonably failed to take advantage of any preventive or
corrective opportunities provided by the employer or to otherwise avoid harm.” 3 N.Y.3d 295,
312 (2004) (citing Ellerth, 524 U.S. at 765 and Faragher, 524 U.S. at 805–08))). In Zakrzewska
v. New School, the New York Court of Appeals strongly suggested that the defense is available
under the NYSHRL, while holding that the Faragher/Ellerth defense is not available under the
NYCHRL. Zakrzewska, 14 N.Y.3d 469, 481 (2010). The court arrived at this conclusion by
contrasting the NYCHRL with the NYSHRL, and in doing so, noted that (1) “we have always
strived to ‘resolve federal and state employment discrimination claims consistently,’” and (2)
“[u]nlike state law . . . the NYCHRL creates an interrelated set of provisions to govern an
employer’s liability for an employee’s unlawful discriminatory conduct in the workplace. This
legislative scheme simply does not match up with the Faragher–Ellerth defense.” Id.; see also
Joyner v. City of New York, No. 11-CV-4958, 2012 WL 4833368, at *4 (S.D.N.Y. Oct. 11, 2012)
(“Although there appears to be no controlling authority establishing that the Ellerth/Faragher
defense is available to claims under state law, the New York State Court of Appeals has
suggested that this is so, the plaintiff does not argue otherwise.” (citing Zakrzewska, 14 N.Y.3d
at 479)). Several New York Supreme Court, Appellate Division cases have recognized the
Faragher/Ellerth defense. See Barnum v. N.Y.C. Transit Auth., 878 N.Y.S.2d 454, 455–56 (App.
Div. 2009) (“[U]nder Executive Law § 296, it is a defense to a claim of harassment arising from
the conduct of a supervisory employee that the employer “exercised reasonable care to prevent
and correct promptly [the] discriminatory conduct . . . and that the plaintiff unreasonably failed
to take advantage of any preventive or corrective opportunities provided by the employer or to
otherwise avoid harm” (quoting Forrest, 3 N.Y.3d at 312 n.10)), abrogated on other grounds by
Nelson v. HSBC Bank USA, 929 N.Y.S.2d 259 (App. Div. 2011); Winkler v. N.Y.S. Div. of
Human Rights, 872 N.Y.S.2d 797, 798 (App. Div. 2009) (“An employer may assert as an
affirmative defense that it ‘exercised reasonable care to prevent and correct promptly
discriminatory conduct committed by its supervisory personnel, such as by promulgating an
antidiscrimination policy with complaint procedure, and that the [employee] unreasonably failed
to take advantage of any preventive or corrective opportunities provided by the employer or to
otherwise avoid harm’” (quoting Forrest, 3 N.Y.3d at 312 n. 10)); Dunn v. Astoria Fed. Sav. &
Loan Ass’n, 856 N.Y.S.2d 114, 115 (App. Div. 2008) (“Dismissal of plaintiff’s sexual
harassment/hostile work environment claim was also appropriate, since plaintiff failed to avail
herself of Astoria’s anti-discrimination policy of which she was aware” (citing Ellerth, 524 U.S.
at 765 and Faragher, 524 U.S. at 807–08)); Vitale v. Rosina Food Products Inc., 727 N.Y.S.2d
215, 219 (App. Div. 2001) (noting that the Faragher/Ellerth defense “allows an employer, under
certain circumstances, to avoid vicarious liability to an employee subjected to a hostile work
environment created by a supervisor with immediate ‘or successively higher’ authority over the
employee” (citing Ellerth, 524 U.S. at 745)).
Some district courts have also applied the defense to claims under the NYSHRL. See
Adams v. City of New York, 837 F. Supp. 2d 108, 125 (E.D.N.Y. 2011) (noting that “[f]or claims
under Title VII and the NYSHRL, the employer may be permitted, ‘subject to proof by a
preponderance of the evidence,’ to raise the Faragher/Ellerth affirmative defense to liability,”
but finding that defendant had not made the requisite showing (quoting Gorzynski, 596 F.3d at
103)); Audrey v. Career Inst. of Health & Tech., No. 06-CV-5612, 2010 WL 10094570, at *17
(E.D.N.Y. Jan. 12, 2010) (granting summary judgment as to plaintiff’s hostile work environment
59
e.
Equal Pay Act claim against National Grid
Plaintiff claims that National Grid willfully violated her rights pursuant to the Equal Pay
Act (EPA) by failing to pay her wages equal to those paid to men for equal work. (Compl. ¶ 44.)
The Equal Pay Act “prohibits employers from discriminating among employees on the basis of
sex by paying higher wages to employees of the opposite sex for ‘equal work.’” Chepak v.
Metro. Hosp., 555 F. App’x 74, 76 (2d Cir. 2014) (quoting Belfi v. Prendergast, 191 F.3d 129,
135 (2d Cir. 1999)). To establish a claim, a plaintiff must make an initial showing that “[(1)] the
employer pays different wages to employees of the opposite sex; [(2)] the employees perform
equal work on jobs requiring equal skill, effort, and responsibility; and [(3)] the jobs are
performed under similar working conditions.” Id. (quoting Belfi, 191 F.3d at 135.) If a plaintiff
can make this showing, “the burden shifts to the employer to demonstrate that wage disparities
are due to a seniority system, a merit system, a system that measures earnings based upon
quantity or quality of production, or other differentials based on any factor other than sex,
provided it was implemented for a legitimate business reason.” Forden v. Bristol Myers Squibb,
63 F. App’x 14, 15 (2d Cir. 2003) (quoting Belfi, 191 F.3d at 136). “Once the employer proves
claim under NYSHRL based on the Faragher/Ellerth defense), report and recommendation
adopted, No. 06-CV-5612, 2014 WL 2048310 (E.D.N.Y. May 18, 2014).
In light of the intimations in two New York Court of Appeals cases that the
Faragher/Ellerth defense does apply to claims brought under the NYSHRL, the decisions of the
intermediate level New York state courts, and the broader principle that the Second Circuit and
the New York Court of Appeals “typically treat[s] Title VII and NY[S]HRL discrimination
claims as analytically identical, applying the same standard of proof to both claims,” Salamon,
514 F.3d at 226, see also Forrest, 3 N.Y.3d at 316 (noting that NYSHRL discrimination claims
were “in accord with the federal standards under title VII of the Civil Rights Act of 1964”), the
Court applies the Faragher/Ellerth defense to Plaintiff’s NYSHRL hostile work environment
claim. See Perks, 251 F. Supp. 2d at 1159 (“Given [the Second Circuit’s] guidance and the
longstanding practice of looking to Title VII case law when interpreting the NY[S]HRL, this
Court applies the Supreme Court’s [Faragher/Ellerth] framework to Perks’ NY[S]HRL claim as
well as his Title VII claim.”).
60
that the wage disparity is justified by one of the EPA’s four affirmative defenses, ‘the plaintiff
may counter the employer’s affirmative defense by producing evidence that the reasons the
defendant seeks to advance are actually a pretext for sex discrimination.’” Ryduchowski v. Port
Auth. of N.Y. & N.J., 203 F.3d 135, 142 (2d Cir. 2000) (quoting Belfi, 191 F.3d at 136).
Plaintiff alleges in her Complaint that she was paid differently from unnamed male
colleagues, and in her deposition testimony explained that her “complaint is [about] field
supervisors that were brought in from outside of the company with no knowledge of their
abilities and capabilities and were starting at a much higher salary,” and identified three such
individuals, “Sam S.,” 26 Martin Lyons and James Luckie, who were paid more than her.
(Compl. ¶ 13; Pl. Dep. 72:8–73:5.) In her opposition to National Grid’s motion for summary
judgment, Plaintiff asserts that she was also paid less than James Keagins and Sal Marinello. (Pl.
Opp’n 21–22.) The Court considers Plaintiff’s claims as to each of these individuals.
i.
Simon “Sam” Sarcona
National Grid argues that Plaintiff’s claims as to Sarcona are time-barred, as he was hired
in 2004 and voluntarily left the company in 2006, and the statute of limitations for an Equal Pay
Act claim is two years. (Def. Mem. 20–21; Affidavit of Maryjane Baer, annexed to Def. Notice
of Motion at Docket Entry No. 31 (“Baer Aff.”) ¶ 9.) Plaintiff does not contest this assertion. In
addition, Plaintiff’s Complaint was filed on November 14, 2011, more than four years after the
last day on which an Equal Pay Act claim as to Sarcona could have accrued. See 29 U.S.C.
§ 255 (establishing two year statute of limitations for Equal Pay Act claims, and three years for
willful violations); McGullam v. Cedar Graphics, Inc., No. 04-CV-2891, 2007 WL 4326819,
26
Defendants identify this individual as Simon Sarcona, who also goes by the first name
“Sam.” (Affidavit of Maryjane Baer, annexed to Def. Notice of Motion at Docket Entry No. 31
¶ 3.)
61
at *1 (E.D.N.Y. Dec. 7, 2007) (“Claims brought pursuant to the Equal Pay Act are subject to a
two-year statute of limitations, except with respect to allegations of willful violations, which are
subject to a three-year limitations period. “ (citing Pollis v. New School for Social Research, 132
F.3d 115, 118 (2d Cir. 1997)). Accordingly, Plaintiff’s claims under the EPA as to Sarcona are
dismissed.
ii.
Martin Lyons
National Grid argues that Plaintiff cannot establish a prima facie case under the EPA as
to Lyons because she was not paid less than Lyons. Lyons was paid $90,000 and Plaintiff was
paid $91,960 at the time of Plaintiff’s termination in February 2011. (Def. Mem. 22 (citing Baer
Aff. ¶ 4).) Plaintiff does not contest National Grid’s assertion. Accordingly, Plaintiff’s claim
under the EPA as to Lyons is dismissed.
iii. Jamies Luckie
National Grid argues that, assuming that Plaintiff was paid differently than Luckie,
despite sharing the same job title, the pay differential was because Luckie was hired from outside
National Grid to work at a different location than Plaintiff in 2005, held a bachelor’s degree in
engineering at the time of his hiring, and had worked as a supervisor for at least eight years prior
to being hired by National Grid. (Def. Mem. 23 (citing Baer Aff. ¶¶ 12–13); see Def. 56.1 ¶¶
47–53.) National Grid notes that, in contrast, at the time Plaintiff was promoted to Field
Supervisor [in 2004], she “did not have a college degree or prior relevant supervisory experience,
and never actually worked in [the] field herself.” (Id. (citing Setelius Dep 10[:2]–14[:20] and
Baer Aff. ¶ 7).) Plaintiff argues that “given that both employees held the same job title, this
argument does not prove that gender was not a factor.” (Pl. Opp’n Mem. 21.)
62
Plaintiff’s argument is not supported by case law. While the fact that Plaintiff shared the
same job title with Luckie may support the establishment of Plaintiff’s prima facie case of pay
differential, it is insufficient, by itself, to overcome the explanation proffered by National Grid
— that Luckie had eight years of supervisory experience and a bachelor’s degree in engineering,
while Plaintiff had no prior supervisory experience and no degree. (See Pl. Resp. 56.1 ¶¶ 47–
53.) Both of these facts provide a factor other than sex for the difference in pay to Plaintiff and
Luckie. So too does the fact that Luckie was hired from outside the company, as National Grid
considered a prospective employee’s earnings immediately prior to his or her employment with
National Grid in determining the starting salary. (Baer Aff. ¶ 5); see Virgona v. Tufenkian Imp.Exp. Ventures, Inc., No. 05-CV-10856, 2008 WL 4356219, at *10 (S.D.N.Y. Sept. 23, 2008)
(granting defendant’s motion for summary judgment as to EPA claim, finding that the difference
between the plaintiff’s qualifications and that of a male comparator sufficed to provide a “factor
other than sex” explanation for pay differential, where the comparator had “a bachelor’s degree
in accounting, an MBA, and a CPA license, [and] also possessed twelve years of experience in
the field,” while plaintiff did not have a college degree and, while she “possessed approximately
seven to ten years of experience in the field at the time of hire, she had never worked as an
assistant controller or as a controller’”); Drury v. Waterfront Media, Inc., No. 05-CV-10646,
2007 WL 737486, at *4 (S.D.N.Y. Mar. 8, 2007) (granting defendant’s motion for summary
judgment as to EPA claim, finding that “[s]alary matching and experience-based compensation
are reasonable, gender-neutral business tactics, and therefore qualify as ‘a factor other than
sex.’”); Osborn v. Home Depot U.S.A., Inc., 518 F. Supp. 2d 377, 385 (D. Conn. 2007) (noting
that “market forces, previous experience, education, and inducement to hire the best person for
the job have been held to be legitimate factors justifying pay differentials under the EPA” and
63
denying summary judgment in light of factual disputes as to these factors ” (citing cases)); Cox v.
Quick & Reilly, Inc., 401 F. Supp. 2d 203, 213–14 (N.D.N.Y. 2005) (noting that “various courts
have held that experience, seniority, and salary-retention policies can sometimes be legitimate,
gender-neutral justifications sufficient to rebut a prima facie showing of discrimination in
violation of the EPA,” but finding a genuine issue of material fact as to whether these factors
were pretextual); Howard v. Cmty. Action Org. of Erie Cnty., Inc., No. 01-CV-0784, 2003 WL
21383271, at *3 (W.D.N.Y. May 30, 2003) (granting defendant’s motion for summary judgment
as to EPA claim, finding that the defendant “satisfied its burden of persuasion by demonstrating
that [the male comparator’s] higher compensation was a result of legitimate non-discriminatory
factors – to wit, experience and seniority.”); but see Chin v. Chinatown Manpower Project, No.
11-CV-5270, 2014 WL 2199424, at *17 (S.D.N.Y. May 23, 2014) (“While defendants raise a
number of potentially dispositive defenses, including relative qualifications and necessity in
order to retain the services of a highly desirable candidate, the viability of such defenses is
normally a question for a jury.”).
Once National Grid has established “that the wage disparity is justified by one of the
EPA’s four affirmative defenses,” Plaintiff must present evidence to show that its reasons are
pretext. See Ryduchowski, 203 F.3d at 142 (“[T]he plaintiff may counter the employer’s
affirmative defense by producing evidence that the reasons the defendant seeks to advance are
actually a pretext for sex discrimination.”) Plaintiff does not argue that Luckie’s prior
experience, greater educational credentials, and the fact that he was an external hire were factors
used by National Grid as a pretext for discrimination. Plaintiff’s only assertion is that “given
that both employees held the same job title, [National Grid’s explanation] does not prove that
64
gender was not a factor.” (Pl. Opp’n Mem. 21.) This is insufficient to meet her burden to show
that the reason proffered by National Grid is pretext for sex discrimination.
Nor is there sufficient evidence in the record from which a reasonable jury could find that
National Grid’s explanation is pretext for sex discrimination. In evaluating a plaintiff’s
argument that the defendant’s explanation is pretext, the court looks to “whether the employer
has used the [justification] reasonably in light of the employer’s stated purpose as well as its
other practices.” Osborn, 518 F. Supp. 2d at 386 (quoting Aldrich v. Randolph Cent. Sch. Dist.,
963 F.2d 520, 526 (2d Cir. 1992)). National Grid has offered evidence that it “values employees
with professional degrees and extensive work experience,” and “[g]enerally, [it] compensates the
employees with professional degrees and extensive work experience at a higher level, as
compared to employees without these attributes.” (Baer Aff. ¶ 5.) In the absence of any
evidence by Plaintiff to overcome this explanation, no reasonable jury could find that the
explanation is pretext for sex discrimination. Compare Belfi, 191 F.3d at 137–38 (“Other
evidence presented by plaintiff [of inconsistent explanations by the defendants] convinces us that
there exist genuine issues of material fact regarding pretext sufficient to preclude a grant of
summary judgment.”). Accordingly, the Court grants National Grid’s motion for summary
judgment of Plaintiff’s EPA claim as to Luckie.
iv. James Keagins and Sal Marinello
Plaintiff argues for the first time in her opposition papers that James Keagins and Sal
Marinello were paid more than her for substantially equivalent work. (Pl. Opp’n Mem. 21.)
Plaintiff cites to tables purportedly documenting the annual salaries for Plaintiff, Keagins and
Marinello, which are annexed to Plaintiff’s affidavit. (See untitled table, annexed to Setelius Aff.
as Ex. 4 (“Setelius salary table”); untitled table, annexed to Setelius Aff. as Ex. 5 (“Marinello
65
salary table”); untitled table, annexed to Setelius Aff. as Ex. 6 (“Keagins salary table”).)
According to the table, Plaintiff earned a salary of $91,960 on June 27, 2010, while Keagins
earned a salary of $101,889 and Marinello earned a salary of $95,599 on the same date. All
three individuals shared the title “Senior Supervisor – Electric,” beginning on September 25,
2005 for Keagins and Plaintiff, and September 25, 2004 for Marinello. Prior to the change in
salary on September 25, 2005, Plaintiff was earning a salary of $69,350, while Keagins was
earning a salary of $91,600; on September 25, 2004, Marinello earned a salary of $79,300. Thus,
Plaintiff has established her prima facie case of pay differential as to Keagins and Marinello.
National Grid argues that Plaintiff conceded in her deposition testimony that she does not
assert an EPA claim with respect to either Keagins or Marinello because both of those
individuals were promoted to the field supervisor position from a lineman position, which was a
higher-paying position than the work coordinator position from which Plaintiff was supervised.
(Def. Reply 10 (citing Pl. Dep. 71).) Plaintiff argues that National Grid has offered no legitimate
business reason for why Keagins and Marinello were paid more than her. 27 (Pl. Opp’n Mem.
21.)
Keagins was hired by a predecessor to National Grid in 1984, two years before Plaintiff
started working for National Grid. (Reply Affidavit of Kathleen Gangarossa, annexed to Def.
27
National Grid does not make an argument in opposition to Plaintiff’s claim, but only
asserts that Plaintiff may not now change her testimony in an effort to defeat summary judgment.
(Def. Reply 10 (citing Reza v. Khatun, No. 09-CV-233, 2013 WL 596600, at *8 (E.D.N.Y. Feb.
15, 2013) and Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001)).) Although it is wellestablished that “factual allegations that might otherwise defeat a motion for summary judgment
will not be permitted to do so when they are made for the first time in the plaintiff’s affidavit
opposing summary judgment and that affidavit contradicts her own prior deposition testimony,”
Brown, 257 F.3d at 252, here, Plaintiff is not making a factual allegation in a sworn affidavit that
contradicts her prior testimony. Rather, she is asserting a claim in her memorandum of law that
she appears to have abandoned in her deposition testimony. In the interest of fully addressing
the legal arguments raised by Plaintiff, the Court addresses Plaintiff’s claims on the merits.
66
Notice of Motion as Docket Entry No. 40 (“Gangarossa Aff.”) ¶ 4, Def. 56.1 ¶ 1; Pl. Resp. 56.1
¶ 1.) Keagins was promoted to “apprentice lineman” in 1986, and to “lineman first class” in
1988, and then to “a supervisory position within the Overhead and Underground Lines
Department” of the company in 1997, four years prior to Plaintiff’s first promotion to a
management position as a work coordinator, in 2001. (Gangaross Aff. ¶ 5; Def. 56.1 ¶ 2; Pl.
Resp. 56.1 ¶ 2.) Marinello was hired by a predecessor to National Grid in 1963 as a groundman
in the Overhead Lines and Services Department, and was selected to work as an apprentice
lineman in 1965. (Gangarossa Aff. ¶ 7.) Marinello worked as a lineman until 1976, when he
left the company. (Id. ¶ 8.) Marinello returned to the company in 1999, as a Field Supervisor.
(Id. ¶ 10.) According to Plaintiff’s deposition, the lineman position, as a skilled job, is one of
the highest paid positions under the labor contract. (Pl. Dep. 68:9–17.) Plaintiff acknowledged
that “some of the field supervisors were former lineman,” and “they would have been at the
highest ranks of the labor contract.” (Id. at 70:18–22.) Plaintiff explained that “[t]hat’s not
where my complaint lies. . . . My complaint is elsewhere.” (Id. at 70:23–71:9.) She affirmed
that she “recognize[d] that there are field supervisors who came to the position of field
supervisor from positions that paid more than [her] position paid,” and “agree[d] that that would
be an explanation for why those field supervisors made more money than” her. (Id. 70:25–71:8.)
Accordingly, there is a nondiscriminatory reason in the record for the pay difference between
both Keagins and Marinello, and Plaintiff — the fact that they previously worked as linemen
while Plaintiff had not — which Plaintiff has not shown is pretextual, and has acknowledged is a
valid basis for the difference in pay, at least initially.
However, Plaintiff argues that summary judgment is inappropriate as to Marinello
because he received higher pay raises than she did. (Pl. Opp’n Mem. 21–22.) Plaintiff argues
67
that she and Marinello reported to the same supervisor, Delach, who consistently spoke highly of
Plaintiff at a bi-annual meeting of section managers where the section managers make arguments
as to where their subordinates should be ranked, and that Delach consistently disparaged
Marinello’s performance and attitude, and yet Marinello was ranked higher than Plaintiff as a
result of the decisions made at the section manager meetings. (Id.) Plaintiff concedes that the
reason Marinello received higher raises than Plaintiff was because “supervisor salaries are based
upon rankings, and Marinello was consistently ranked higher than” Plaintiff. (Pl. Opp’n Mem.
21 (citing Delach Dep. 44–48).) The crux of Plaintiff’s claim appears to be that the collective
decision made by section managers to rank Marinello higher than Plaintiff was wrong, in light of
the consistent advocacy by their supervisor, Delach, that Plaintiff should be ranked higher than
Marinello. (See Pl. Opp’n Mem. 22.) The implicit conclusion Plaintiff draws is that this
collective decision must therefore have been motivated by gender. This speculation is
insufficient to meet Plaintiff’s burden to “counter the employer’s affirmative defense by
producing evidence that the reasons the defendant seeks to advance are actually a pretext for sex
discrimination.” See Ryduchowski, 203 F.3d at 142. Plaintiff has only alleged discriminatory
conduct on the part of Delach, and here, Plaintiff asserts that Delach was strenuously advocating
on her behalf for a higher ranking than that of her comparator Marinello, but that the decision
ultimately as to her rank and her pay was made by others. These facts undermine, rather than
support, Plaintiff’s claim of unequal pay based on gender.
In sum, because Plaintiff’s Equal Pay Act claims are either time-barred, lacking a prima
facie case of pay differential, or fail to show that National Grid’s nondiscriminatory reasons for
the differential pay is gender-based, the Court grants National Grid’s motion for summary
judgment on all of Plaintiff’s Equal Pay Act claims against National Grid.
68
f.
Delach’s personal liability under NYSHRL
Plaintiff contends that Delach “knowingly and/or recklessly aided, abetted, incited,
compelled, coerced and/or actively participated” in National Grid’s unlawful conduct, (Compl.
¶ 46), and is personally liable under the NYSHRL for Plaintiff’s unequal pay and hostile work
environment claims as a supervisor who “actually participates in the conduct giving rise to a
discrimination claim.” 28 (Pl. Opp’n Mem. 25 (quoting Tomka v. Seiler Corp., 66 F.3d 1295,
1317 (2d Cir. 1995).) Delach argues that “it is well-established that an individual cannot be held
liable under the NY[S]HRL for aiding and abetting his own alleged discriminatory conduct.”
(Def. Mem. 25 (citing Nunez v. Cuomo, No. 11-CV-3457, 2012 WL 3241260, at *20 (E.D.N.Y.
Aug. 7, 2012) and Virola v. XO COmms., Inc., No. 05-CV-5056, 2008 WL 1766601, at *20
(E.D.N.Y. Apr. 15, 2008)).) Plaintiff asserts that “[t]he Second Circuit has made it clear that a
supervisor ‘who actually participates in the conduct giving rise to a discrimination claim may be
held personally liable under the [NYS]HRL.’” (Pl. Opp’n Mem. 25 (quoting Tomka, 66 F.3d at
1317)).
The NYSHRL allows for individual liability under two theories: (1) if the defendant has
“an ownership interest” in the employer or has the authority to hire and fire employees,” N.Y.
28
In the Complaint Plaintiff alleges that Delach is individually liable for “the
aforementioned conduct in violation of the NYSHRL.” (Compl. ¶ 46.) It is unclear if this is
meant to allege claims of liability as to all of Plaintiff’s NYSHRL claims asserted against
National Grid. It is equally unclear whether, by discussing only Plaintiff’s unequal pay and
hostile work environment claims in the memorandum of law, and not addressing her NYSHRL
claims of discrimination and retaliation, Plaintiff concedes that Delach is not individually liable
for these claims, or that she intends to assert a claim of individual liability pursuant to the Equal
Pay Act. In an abundance of caution, the Court analyzes Delach’s individual liability as to all of
Plaintiff’s NYSHRL claims against National Grid: discrimination, retaliation and hostile work
environment, as well as the allegation that Delach is individually liable for the unequal pay.
69
Exec. Law § 296(1), 29 and (2) if the defendant was aiding and abetting the unlawful
discriminatory acts of others, id. § 296(6). 30
Plaintiff does not invoke the first of these theories. 31 Rather, she asserts that Delach is
liable as an aider and abetter under the NYSHRL. (Compl. ¶ 46.) The Second Circuit has read
§ 296(6) broadly to find that supervisors and co-workers can be liable pursuant to this section
even if they do not have the ability to hire and fire employees, so long as they “actually
participate[d] in the conduct giving rise to the discrimination.” Feingold v. New York, 366 F.3d
138, 157 (2d Cir. 2004) (alteration omitted) (quoting Tomka, 66 F.3d at 1317); see also Scalera,
2012 WL 991835, at *14–15 (citations omitted) (“An individual can also be held liable under
§ 296(6) when he or she ‘actually participates in the conduct giving rise to a discrimination
claim.’”).
29
See Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995) (noting that “an
employee is not individually subject to suit under § 296 of the HRL as an employer ‘if he is not
shown to have any ownership interest or any power to do more than carry out personnel
decisions made by others’” (quoting Patrowich v. Chem. Bank, 63 N.Y.2d 541, 542 (1984))),
abrogated on other grounds by Ellerth, 524 U.S. at 742.
30
Section 296(6) of the NYSHRL provides that: “It shall be an unlawful discriminatory
practice for any person to aid, abet, incite, compel or coerce the doing of any of the acts
forbidden under this article, or to attempt to do so.” N.Y. Exec. Law § 296(6).
31
Moreover, because Delach does not have an ownership interest in National Grid and
there is no evidence that he had the power to hire or fire any employees, he is not subject to
liability under § 296(1) of the NYSHRL. In addition, it is clear from the record that Delach did
not play a role in the decision to terminate Plaintiff. See Edwards v. Jericho Union Free Sch.
Dist., 904 F. Supp. 2d 294, 304 (E.D.N.Y. 2012) (finding plaintiff did not state a claim of
individual liability pursuant to § 296(1), where the plaintiff “does not allege that either school
principal had the power or authority to hire or fire plaintiff, or that they had the ability to do
anything more than ‘carry out personnel decisions’ made by the Board and/or District.” (quoting
Patrowich, 63 N.Y.2d at 542 (1984))). Counsel for Plaintiff conceded at oral argument that
Plaintiff is not claiming Delach is liable pursuant to § 296(1).
70
Liability as an aider and abettor under § 296(6) can be established only when liability has
first been established as to the employer or another person. See Redd v. N.Y.S. Div. of Parole,
923 F. Supp. 2d 371, 392 (E.D.N.Y. 2012) (“Under New York law, ‘liability must first be
established as to the employer/principal before accessorial liability can be found as to an alleged
aider and abettor.’” (quoting DeWitt v. Lieberman, 48 F. Supp. 2d 280, 293 (S.D.N.Y. 1999)));
Davis-Bell v. Columbia Univ., 851 F. Supp. 2d 650, 688 (S.D.N.Y. 2012) (“‘[L]iability under the
[NYS]HRL . . . must first be established as to the employer/principal before an individual may
be considered an aider and abettor.’” (quoting Sowemimo v. D.A.O.R. Sec., Inc., 43 F. Supp. 2d
477, 490 (S.D.N.Y. 1999))); Raneri v. McCarey, 712 F. Supp. 2d 271, 282 (S.D.N.Y. 2010)
(“Where no violation of the Human Rights Law by another party has been established, we find
that an individual employee cannot be held liable for aiding or abetting such a violation.” (citing
Strauss v. N.Y.S. Dep’t of Educ., 805 N.Y.S.2d 704, 709 (App. Div. 2005))); see also Hardwick
v. Auriemma, 983 N.Y.S.2d 509, 513 (App. Div. 2014) (“Since it is alleged that Auriemma’s
own actions give rise to the discrimination claim, he cannot also be held liable for aiding and
abetting.”), leave to appeal denied, No. 2014-533, 2014 WL 2936031 (N.Y. July 1, 2014); cf.
Feingold, 366 F.3d at 151, 156, 158 (denying the defendant’s motion for summary judgment as
to the plaintiff’s claims of disparate treatment and hostile work environment asserted against the
employer, and also finding that the plaintiff “has presented sufficient evidence to create a triable
question as to whether each of the named individual defendants ‘actually participated’ in the
conduct giving rise to [the plaintiff’s] claim of unlawful discrimination in violation of the
NYSHRL”).
71
Because Plaintiff has not established liability as to National Grid with respect to her
NYSHRL claims of discrimination, retaliation, or hostile work environment, Plaintiff cannot
establish Delach’s individual liability for these claims. 32
As to Plaintiff’s hostile work environment claim under NYSHRL, Plaintiff relies on the
Second Circuit’s observation that “a defendant who actually participates in the conduct giving
rise to a discrimination claim may be held personally liable under the [NYS]HRL.” Tomka, 66
F.3d at 1317. However, establishing this threshold requirement is insufficient to preclude
summary judgment, as an individual cannot be held liable for “aiding and abetting” his own
discriminatory conduct in the absence of liability of the employer or another individual. See
Nunez, 2012 WL 3241260, at *20 (E.D.N.Y. Aug. 7, 2012) (“An individual cannot be found
liable under the NYSHRL for “aid[ing] and abet[ting] his own alleged discriminatory conduct.”
(citing Raneri, 712 F. Supp. 2d at 282 and Strauss, 805 N.Y.S.2d at 709)); Virola, 2008 WL
1766601, at *20 (E.D.N.Y. Apr. 15, 2008) (“An individual may not be held liable, however,
merely for aiding and abetting his own discriminatory conduct but only for assisting another
party in violating the NY[S]HRL.” (citing DeWitt v. Lieberman, 48 F. Supp. 2d 280, 294
(E.D.N.Y. 1999) and Strauss, 805 N.Y.S.2d at 709)). Plaintiff has not established National
32
Although the Court’s finding that there is no liability as to National Grid for a hostile
work environment claim is based on National Grid’s successful assertion of the Faragher/Ellerth
affirmative defense establishing that any allegedly harassing conduct cannot be imputed to the
National Grid, rather than on an assessment of whether Delach created a hostile work
environment for Plaintiff, at least one other court, addressing the same scenario, found that an
individual defendant could not be held liable pursuant to § 296(6) of the NYSHRL, where the
company was shielded from liability because of the Faragher/Ellerth defense. See Alexander v.
Westbury Union Free Sch. Dist., 829 F. Supp. 2d 89, 115 (E.D.N.Y. 2011) (addressing a claim
“in which the only individual defendant against whom the claim can be brought is the alleged
primary harasser, and in which the employer . . . is not liable pursuant to the Faragher defense,”
and noting that, “[l]ike Title VII, § 296 is, in essence, an employment discrimination statute, not
an individual liability statute, even though individuals can, as noted, be liable under some
circumstances.”)
72
Grid’s liability for creation of the claimed hostile work environment, nor has she shown that
anyone other than Delach contributed to the creation of an allegedly hostile work environment.
Without the liability of a principal whose discriminatory conduct Delach aided and abetted,
Plaintiff cannot establish liability on the part of Delach under § 296(6) of the NYSHRL.
Plaintiff appears to argue that Delach is individually liable for her unequal pay. (Pl.
Opp’n Mem. 25 (“Delach is personally responsible for the unequal pay.”).) However, Plaintiff
asserts individual liability against Delach only pursuant to the NYSHRL, (see Compl. ¶ 46), and
Plaintiff has not asserted a claim of unequal pay pursuant to the NYSHRL. Plaintiff’s unequal
pay claim is brought solely under the Equal Pay Act, (see Compl. ¶ 44), and Plaintiff has not
argued that the EPA provides for individual liability. 33
Because Plaintiff has not established a basis for holding Delach liable for any
discriminatory conduct, the Court grants summary judgment as to all claims of individual
liability against Delach.
33
“Although the Second Circuit Court of Appeals has not addressed whether the EPA
provides for individual liability, at least one district court in this Circuit has held that it does.”
Fayson v. Kaleida Health, Inc., No. 00-CV-0860, 2002 WL 31194559, at *4 (W.D.N.Y. Sept.
18, 2002) (citing Bonner v. Guccione, No. 94-CV-7735, 1997 WL 362311, at *13 (S.D.N.Y. July
1, 1997), aff’d, 71 F. App’x 875 (2d Cir. 2003). That court, looking to case law from Courts of
Appeals in other circuits, noted that in determining individual liability, “courts examine the
economic realities of the workplace, including whether the individual has operational control of
the defendant corporation, an ownership interest, controls significant functions of the business or
determines salaries and makes hiring decisions.” See Bonner, No. 94-CV-7735, 1997 WL
362311, at *13 (S.D.N.Y. July 1, 1997) (citing United States Dep’t Lab. v. Cole Enterprises,
Inc., 62 F.3d 775, 778 (6th Cir. 1995); Reich v. Circle C. Investments, Inc., 998 F.2d 324, 329
(5th Cir. 1993) (if individual dominates day-to-day control, no need for ownership interest to
impose personal liability under Section 203(d)); Donovan v. Agnew, 712 F.2d 1509, 1511 (1st
Cir. 1983) and Bonnette v. California Health & Welfare Agency, 704 F.2d 1465, 1469–70 (9th
Cir. 1983)). Here, as discussed supra in note 31, Delach lacked operational control of the
corporation and any ownership interest, did not control significant functions of National Grid as
a whole, or make decisions to hire or fire. While he did play a role with respect to determining
salaries, as the record illustrates, it was not a determinative role. (See Delach Dep. 49:22–53:11.)
73
III. Conclusion
For the foregoing reasons, the Court grants Defendants’ motion for summary judgment as
to all claims. The Clerk of Court is directed to close this case.
SO ORDERED:
s/MKB
MARGO K. BRODIE
United States District Judge
Dated: September 24, 2014
Brooklyn, New York
74
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