Russell v. Aid to Developmentally Disabled, Inc. et al
Filing
111
MEMORANDUM AND ORDER: As set forth in the Court's September 30, 2017 Memorandum and Order, Defendants' motion 101 for summary judgment is GRANTED. See attached Memorandum and Order for details. The Clerk of the Court is respectfully requested to close the case. Ordered by Judge LaShann DeArcy Hall on 9/30/2017. (Zdanys, Joanna)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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FAYE RUSSELL,
MEMORANDUM OF
DECISION AND ORDER
Plaintiff,
12-cv-389 (LDH) (AKT)
-againstAID TO DEVELOPMENTALLY DISABLED, INC.;
DONALD REIB, Individually and as Executive
Director of AID TO DEVELOPMENTALLY
DISABLED, INC.; STACEY RHODE, Individually
and as Residential Manager of AID TO
DEVELOPMENTALLY DISABLED, INC.; PAULA
WANAT, Individually and as Program Director for
AID TO DEVELOPMENTALLY DISABLED, INC.;
CHRISTINA NOLL, Individually and as Human
Resources Manager, AID TO DEVELOPMENTALLY
DISABLED, INC.,
Defendants.
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LASHANN DEARCY HALL, United States District Judge:
Plaintiff Faye Russell brings the instant action against Defendants Donald Rieb, Stacey
Rohde, Paula Wanat, and Christina Noll (the “Individual Defendants”) 1 and Aid to
Developmentally Disabled, Inc. (“ADD”) (collectively, “Defendants”), alleging gender
discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) and the New
York State Human Rights Law (“NYSHRL”), and retaliation in violation of the NYSHRL. 2
Defendants move pursuant to Federal Rule of Civil Procedure 56 for summary judgment.
1
The Individual Defendants’ names are identified as in Defendants’ submission. Their names were either
misidentified or misspelled across Plaintiff’s various submissions.
2
On February 20, 2013, the Court dismissed Plaintiff’s Title VII retaliation claims because Plaintiff failed to
exhaust her administrative remedies. (Mem. and Order 29, Feb. 20, 2013, ECF No. 28.) Plaintiff’s NYSHRL
retaliation claim was dismissed to the extent that Plaintiff premised that claim on Plaintiff’s complaints regarding
the alleged abuse of the residents of the Northville Intermediate Care Facility (“ICF”), as such a claim was not
cognizable under the NYSHRL. (Id. at 32.) Plaintiff’s NYSHRL gender discrimination claims were dismissed for
lack of subject matter jurisdiction pursuant to the NYSHRL’s election of remedies doctrine. (Id. at 22-24.) The
Court also dismissed Plaintiff’s claims under 42 U.S.C. §§ 1983, 1985, and 1986 and Plaintiff’s intentional infliction
of emotional distress claim. (Id. at 34-40.) Plaintiff subsequently sought the Court’s leave to amend her complaint.
1
UNDISPUTED FACTS 3
I.
Background
ADD is a nonprofit organization licensed by the New York State Office for People with
Developmental Disabilities (“OPWDD”). (See Pl.’s Opp’n 56.1 Statement (“Pl.’s 56.1”) ¶ 38.)
ADD operates Intermediate Care Facilities (“ICFs”), residential homes where residents under the
OPWDD’s care, known as “consumers,” live in a homelike environment under the supervision of
(Mot. for Leave to File Second Am. Compl., ECF No. 35.) By Memorandum and Order dated September 16, 2014,
the Court granted Plaintiff’s motion to amend her complaint with regard to her NYSHRL gender discrimination
claim, having found that Plaintiff had alleged sufficient facts to show that an exception to the election of remedies
doctrine applied. (Mem. and Order 9-10, Sept. 16, 2014, ECF No. 41.)
3
The foregoing facts are undisputed unless otherwise noted. Of particular significance here, facts that are not
contradicted by citations to admissible evidence are deemed admitted. See Giannullo v. City of New York, 322 F.3d
139, 140 (2d Cir. 2003) (“If the opposing party . . . fails to controvert a fact so set forth in the moving party’s Rule
56.1 statement, that fact will be deemed admitted.”). Local Civil Rule 56.1(c) provides that “[e]ach numbered
paragraph in the statement of material facts set forth in the statement required to be served by the moving party will
be deemed to be admitted for purposes of the motion unless specifically controverted by a correspondingly
numbered paragraph in the statement required to be served by the opposing party.” It is well-settled in our district
that responses such as “[d]eny knowledge or information sufficient to respond to the allegations in this paragraph”
do not suffice to specifically controvert an opposing party’s statement of fact. See Walker v. City of New York, 63 F.
Supp. 3d 301, 306 n.4 (E.D.N.Y. 2014) (“Plaintiffs have ‘den[ied] knowledge or information sufficient to be able to
admit or deny the contentions’ . . . . [T]his response is insufficient to refute a properly asserted fact by Defendants. .
. . Merely stating that Plaintiffs have insufficient knowledge or information does not specially controvert a fact. . . .
Accordingly, facts asserted by Defendants that were met with this reply are deemed admitted by this Court for
purposes of these summary judgment motions.”), aff’d, 621 F. App’x 74 (2d Cir. 2015); accord. Aztar Corp. v. NY
Entm’t, LLC, 15 F. Supp. 2d 252, 254 n.1 (E.D.N.Y. 1998); Gibbs v. Metro. Transp. Auth., No. 13-cv-1583, 2014
WL 5842833, at *1 n.1 (E.D.N.Y. Nov. 12, 2014); Litchhult v. USTRIVE2, Inc., No. 10-cv-3311, 2013 WL
3491076, at *2 n.1 (E.D.N.Y. July 10, 2013); Alfano v. NGHT, Inc., 623 F. Supp. 2d 355, 363 (E.D.N.Y. 2009).
Further, any statements of denial that are not supported by citations to evidence in the record are also deemed
admitted. Green v. Rochdale Village Social Servs., Inc., No. 15-cv-5824, 2016 WL 4148322, at *1 n.1 (E.D.NY.
Aug. 4, 2016) (“Notwithstanding the basic principle that the facts must be construed in favor of the opponent to a
summary judgment motion, Local Civil Rule 56.1 provides that unless a party responding to a statement of
undisputed facts cites evidence as to those statements that she denies, the statements will be deemed admitted if they
are supported by citations to evidence in the record.”). At a number of points in her 56.1 Opposition and CounterStatement, Plaintiff responds to Defendants’ statements of fact as follows, or some variation thereof: “Plaintiff lacks
information sufficient to admit or deny.” (See Pl.’s Opp’n 56.1 Statement (“Pl.’s 56.1”) ¶¶ 38, 50-61, 74, 84, 88-89,
97, 104-17, 119-23, 125-26, 133, 139-40, 147-48, 153-56, 163-64, 176-82, 185, 187, 190-94, 202-15, ECF 94.) At
several points, Plaintiff states that she “cannot admit or deny as worded” or some variation thereof. (Id. ¶¶ 64, 83,
128, 131, 161-162, 184, 200, 228.) At other points, Plaintiff denies Defendants’ statements of fact but does not
provide any evidence to controvert those facts. (See, e.g., Pl.’s 56.1 ¶¶ 1, 4, 13, 76-78, 87, 94-96, 98-103, 118, 124,
130, 141-143, 157-59, 174, 197, 199.) At still other points, Plaintiff refers the Court to Plaintiff’s entire deposition
transcript without providing direct citations. (See id. ¶¶ 79-81, 136-138, 151, 166.) Plaintiff denies paragraph 69 of
Defendants’ 56.1 statement as “Deny , [sic] reliance is placed on Plaintiff’s testimony.” (Id. ¶ 69.) Plaintiff
responds to Defendants’ paragraph 21 of Defendants’ 56.1 statement as “Response: 21.” (Id. ¶ 21.) Other responses
are left completely blank. (See, e.g., id. ¶¶ 107, 135.) The foregoing examples are not exhaustive and provide only
a sample of the various responses Plaintiff provides that are not supported by admissible evidence. Facts met with
these insufficient responses are deemed undisputed.
2
ADD’s staff members. (Id. ¶¶ 55-56.) During the relevant time period, Defendant Donald Rieb,
who is male, held the position of Executive Director of ADD. (Id. ¶ 50.) Defendant Christina
Noll, who is female, was ADD’s Human Resources Manager. (Id. ¶ 52.) Defendant Paula
Wanat, also female, was ADD’s Program Director. (Id. ¶ 53.)
The events relevant to this action took place at the Northville ICF, which housed eight
consumers with developmental disabilities. (Id. ¶ 58.) Defendant Stacey Rohde, who is female,
was the Residence Manager at the Northville ICF. (Id. ¶ 57.) Plaintiff’s daughter, Batwonna
Street, was also employed at the Northville ICF during the relevant time period and reported to
Ms. Rohde. (Id. ¶¶ 63-65.) In January 2009, Plaintiff applied to work as a cook at the Northville
ICF. (Id. ¶¶62-63.) Ms. Rohde and Ms. Noll interviewed Plaintiff for the position, and, with
Ms. Rohde’s support, Ms. Noll made Plaintiff an offer of employment. (Id. ¶¶ 66, 68.)
Plaintiff began working as a full-time cook at the Northville ICF on February 2, 2009,
reporting directly to Ms. Rohde. (Id. ¶¶ 66, 70, 75.) Approximately nineteen other individuals
worked at the Northville ICF as supervisors and “Direct Support Professionals” (“DSPs”), but
Plaintiff was the only full-time cook. (Id. ¶ 72.) In her role, Plaintiff was responsible for
preparing meals according to each consumer’s special dietary plan, grocery shopping, and
maintaining the kitchen. (Id. ¶ 71.) Plaintiff worked a schedule of Monday to Friday, 12:00 p.m.
until 8:00 p.m. (Id. ¶ 73.) This schedule was set by the OPWDD and could not be permissibly
modified by any ADD employee. (Id. ¶ 74.)
II.
Plaintiff’s Scheduling and Attendance Issues
In May 2009, Plaintiff became responsible, unexpectedly, for the care of her three young
grandchildren. (Id. ¶ 82.) Because of the demands of childcare, Plaintiff was unable to work the
12:00 p.m. to 8:00 p.m. schedule. (Id. ¶ 83.) Ms. Rohde offered to accommodate Plaintiff with a
3
flexible schedule on a temporary basis. (Id. ¶ 85.) There is no dispute that Plaintiff understood
that the flexible schedule was a temporary arrangement. (Id. ¶ 86.) Ms. Rohde told Plaintiff to
advise her in advance of Plaintiff’s expected arrival and departure times. (Id. ¶ 87.) Ms. Rohde
did not consult her supervisor, Ms. Wanat, or the Human Resources manager, Ms. Noll, before
agreeing to this arrangement with Plaintiff. (Id. ¶ 88.)
On June 4, 2009, Plaintiff was scheduled to attend a mandatory in-service training. (Id. ¶
90.) Defendants contend that Plaintiff did not attend that session or inform Ms. Noll of her
absence in advance. (Id. ¶¶ 90-91.) On June 8, 2009, Plaintiff was scheduled to attend another
mandatory in-service training. (Id. ¶ 92.) Defendants state that Plaintiff again missed the session
and did not inform Ms. Noll of her absence. (Id. ¶ 93.) Plaintiff denies that she missed either
training session. (Id. ¶¶ 90-93.) In any event, in light of these alleged absences, Ms. Noll
recommended to Ms. Rohde that Plaintiff receive verbal counseling. (Id. ¶ 94.) Plaintiff
subsequently completed an in-service course regarding medication administration. (Defs.’ Reply
56.1 Statement (“Defs.’ Reply 56.1”) ¶ 22, ECF 97.)
In addition to Plaintiff’s alleged absences, Plaintiff regularly arrived late to work or left
before her scheduled shift ended. (Pl.’s 56.1 ¶¶ 77, 79.) On August 17, 2009, Ms. Rohde spoke
with Plaintiff about her hours, including the fact that Plaintiff was taking too many breaks, not
returning to work, or staying home from work without calling in first. (Id. at 102; Defs.’ Ex. 36,
ECF 89-21.) Ms. Rohde told Plaintiff that she was willing to work with Plaintiff given her
situation, but that Plaintiff needed to personally contact Ms. Rohde if she was unable to come to
work. (Pl.’s 56.1 ¶ 102; Defs.’ Ex. 36.)
Sometime before January 20, 2010, Ms. Rohde advised Ms. Noll and Ms. Wanat that
Plaintiff was not adhering to the regular cook schedule and explained Plaintiff’s family
4
obligations. (Pl.’s 56.1 ¶¶ 103, 112.) Ms. Wanat informed Ms. Rohde that Plaintiff’s schedule
as a cook was set by the OPWDD and therefore could not be modified. (Id. ¶ 115.)
Ms. Wanat then discussed Plaintiff’s attendance issues with Ms. Noll. (Id. ¶ 116.) Ms.
Wanat informed Ms. Noll that she had reviewed Plaintiff’s time records and discovered a
“significant” discrepancy between the mandated schedule for cooks and the hours that Plaintiff
was actually working. (Id.) Specifically, Ms. Noll had discovered that, between February 2009
and January 2010, Plaintiff had failed to come to work on forty-four occasions and was late for
work on eighty-five occasions. (Id. ¶ 108.) Ms. Rohde confirmed that the time records were
accurate. (Id. ¶¶ 109-10.) Ms. Noll observed that Plaintiff’s attendance record also violated
ADD’s Attendance and Punctuality Policy, which was included in ADD’s employee handbook. 4
(Id. ¶ 118.) Ms. Noll and Ms. Wanat decided to address Plaintiff’s scheduling problems and
issue a “Final Written Warning.” (Id. ¶ 117.) Ms. Noll also consulted Mr. Rieb, who agreed
with that course of action. (Id. ¶ 120-21.)
On January 20 2010, Ms. Noll, Ms. Rohde, and Ms. Wanat met with Plaintiff to discuss
her failure to adhere to the OPWDD-mandated schedule for cooks. (Id. ¶ 126.) Ms. Noll and
Ms. Wanat reiterated that Plaintiff was required to work from 12:00 p.m. until 8:00 p.m., because
the schedule was set by the OPWDD. (Id. ¶¶ 129-30.) In addition, Ms. Noll issued Plaintiff a
“Final Written Warning” for poor attendance. (Id. ¶ 127.) Ms. Noll warned Plaintiff that she
would be terminated if her lateness and absenteeism continued. (Id. ¶ 131.) Plaintiff did not
complain of discrimination or differential treatment based on gender during that meeting. (Id.
¶ 134.) On January 21, 2010, at Plaintiff’s request, Ms. Rohde submitted a “Status Change”
form requesting to change Plaintiff’s schedule from 12:00 p.m. to 8:00 p.m. to 10:00 a.m. to 6:00
4
Shortly after her hire, Plaintiff signed a “handbook acknowledgment statement,” which confirmed that she had
received and read the handbook and agreed to conform to the rules therein. (Pl.’s 56.1 ¶ 47.)
5
p.m. (Id. ¶ 141.) Ms. Wanat and Ms. Noll denied the request because, again, the hours for cooks
were set by the OPWDD and could not be modified. (Id.)
In April 2010, Plaintiff requested a temporary change in her schedule from full-time to
part-time to cover shifts for James Phillips, a DSP who was out on a medical leave of absence.
(Id. ¶ 142.) Ms. Wanat and Ms. Noll approved the request. (Id. ¶ 143.) During the period in
which Plaintiff covered Mr. Phillips’ shifts, her assigned schedule was 7:00 a.m. to 12:00 p.m.
on Fridays, 9:00 a.m. to 9:00 p.m. on Saturdays, and 9:00 a.m. to 3:00 p.m. on Sundays. (Id. ¶
145.)
On May 12, 2010, Mr. Phillips returned from his leave of absence. (Id. ¶ 146.) Upon
Mr. Phillips’ return, Ms. Rohde conferred with Ms. Noll about the options available to Plaintiff:
she could resume her previous position as cook, Monday to Friday from 12:00 p.m. until 8:00
p.m., or she could apply for a vacant part-time overnight position in the Northville ICF, working
Fridays and Saturdays. (Id. ¶ 147.) By letter dated May 12, 2010, Ms. Noll advised Plaintiff of
Mr. Phillips’ return and advised Plaintiff of these options. (Id. ¶ 149.) Plaintiff accepted the
part-time overnight position as of May 21, 2010. (Id. ¶ 150.)
III.
Staff Complaints Concerning Plaintiff and Plaintiff’s Suspension and
Termination
In mid-June 2010, Ms. Rivero, the Assistant Residence Manager at the Northville ICF,
advised Ms. Rohde that other staff members were upset by insensitive comments that Plaintiff
allegedly made regarding the death of one of the Northville ICF residents. (Id. ¶ 153.) Ms.
Rohde reported the situation to Ms. Wanat, who instructed Ms. Rohde to meet with the staff
members individually to obtain written statements from them. (Id. ¶ 154.) Ms. Rohde
interviewed three staff members, one female and two males, and prepared typewritten statements
for each employee summarizing the information they provided. (Id. ¶ 155.) The staff members
6
declined to sign the statements, advising Ms. Rohde that they feared retaliation from Plaintiff.
(Id. ¶ 156.)
Sometime between 8:00 a.m. and 9:00 a.m. on the morning of July 2, 2010, Ms. Wanat
advised Ms. Noll of the aforementioned complaints about Plaintiff. (Id. ¶ 157.) Ms. Noll
attempted to reach Plaintiff by telephone at work to ask her about the allegations. (Id. ¶ 163.)
Although Plaintiff was scheduled to work from 7:00 a.m. to 12:00 p.m. that day, the staff
member who answered the telephone informed Ms. Noll that Plaintiff was not at work. (Id. ¶
164.) Ms. Noll then called Plaintiff and scheduled a time for the two to discuss the matter on
July 6, 2010, at 9:00 a.m., and informed Plaintiff that she was suspended until the discussion.
(Id. ¶¶ 167-68.) Plaintiff made no mention of alleged discrimination or differential treatment
based on gender during the July 2, 2010 conversation. (Id. ¶ 172.) Defendants maintain that
Plaintiff understood, based on that conversation, that Plaintiff was to meet with Ms. Noll in
person on July 6, 2010. (Id. ¶¶ 167-173.) Plaintiff contends that she believed that she was
supposed to call Ms. Noll. ( Defs.’ Reply 56.1 ¶ 52.) However, at her deposition, Plaintiff
testified that Ms. Noll had “wanted to sit down, I guess to discuss whatever it [was] that she had
to talk to me about.” (Pl.’s Ex. P at 190:12-14, ECF 95-2.) Plaintiff did not appear for the July
6, 2010 9:00 a.m. meeting with Ms. Noll. (Pl.’s 56.1 ¶ 184.)
Ms. Noll subsequently reviewed Plaintiff’s performance history, which included:
(1) Plaintiff’s failure to report to work on July 2, 2010, and failing to report her absence; (2) the
“Final Written Warning” issued to Plaintiff for her prior poor attendance; and (3) her violations
of agency policy, including spreading rumors, falsehoods, and gossip. (Id. ¶ 185.) In light of
this record, Ms. Noll decided to terminate Plaintiff’s employment. (Id. ¶ 186.) Ms. Noll spoke
7
with Mr. Rieb later that morning and advised him of her decision. (Id. ¶ 187.) Mr. Rieb agreed
that termination was the proper course. (Id. ¶ 188.)
IV.
Plaintiff’s Informal, Administrative, and Federal Complaints
Plaintiff contends that she complained to others at ADD about discrimination and/or
differential treatment. Plaintiff, however, could not recall when any of the complaints were
made. (Id. ¶ 228.) 5 On July 29, 2010, ADD was notified that Plaintiff had contacted the County
of Suffolk Human Rights Commission, alleging unlawful discrimination in employment based
on sex. (Id. ¶ 2.) Plaintiff had alleged that male employees had been absent more frequently
than Plaintiff but had not been reprimanded or terminated, whereas female employees were
reprimanded or fired for small violations. (Id. ¶ 3.) On November 4, 2010, Plaintiff filed an
administrative complaint with the New York State Division of Human Rights, which was crossfiled with the U.S. Equal Employment Opportunity Commission (“EEOC”). (Id. ¶ 5.) In that
submission, Plaintiff similarly alleged that she had been subjected to unlawful discrimination in
employment on the basis of sex. (Id.) Plaintiff later amended her administrative complaint to
include an allegation of retaliation based on her complaints regarding the treatment of patients
with disabilities. (Id. ¶ 16.) The EEOC issued a Dismissal and Notice of Right to Sue letter on
October 28, 2011. (Id. ¶ 20.) Plaintiff filed the instant federal complaint on January 27, 2012.
(Id. ¶ 21.)
STANDARD OF REVIEW
Summary judgment must be granted when 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
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A genuine dispute of material
5
It is also undisputed that Plaintiff did not complain to Mr. Rieb regarding alleged differential treatment, consumer
abuse, or retaliation during her employment with ADD. (Id. ¶ 226.)
8
fact exists when the evidence as to a fact that might affect the suit’s outcome is such that a
reasonable jury could find in favor of the non-movant at trial. Anderson, 477 U.S. at 248. At
summary judgment, the movants bear the initial burden of demonstrating the absence of a
genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also
Feingold v. New York, 366 F.3d 138, 148 (2d Cir. 2004). Once the movants meet that burden,
the non-movant may defeat summary judgment only by producing evidence of specific facts that
raise a genuine issue for trial. See Fed. R. Civ. P. 56(c); see also Anderson, 477 U.S. at 248;
Davis v. New York, 316 F.3d 93, 100 (2d Cir. 2002). The Court is to view all such facts in the
light most favorable to the non-movant, drawing all reasonable inferences in her favor.
Anderson, 477 U.S. at 255. Still, to survive summary judgment, a non-movant must present
concrete evidence and may not rely on mere conclusory or speculative claims or denials. Quinn
v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir. 1980) (“The litigant
opposing summary judgment, therefore, ‘may not rest upon mere conclusory allegations or
denials’ as a vehicle for obtaining a trial.”).
DISCUSSION
I.
Plaintiff’s Gender Discrimination Claims Under Title VII and the NYSHRL
Gender discrimination claims under Title VII and the NYSHRL are analyzed under the
burden-shifting test articulated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). See Bowen-Hooks v. City of New York, 13 F. Supp. 3d 179, 209-10 (E.D.N.Y.
2014) (applying McDonnell Douglas burden-shifting test to gender and race discrimination
claims under Title VII and NYSHRL). At the first step of this analysis, a plaintiff bears the
burden of establishing a prima facie case of employment discrimination by showing that: (1) she
belongs to a protected class; (2) she was qualified for the position she held; and (3) she suffered
9
an adverse employment action that (4) occurred under circumstances giving rise to an inference
of discrimination. Leibowitz v. Cornell Univ., 584 F.3d 487, 498 (2d Cir. 2009). If the plaintiff
makes out a prima facie case, the burden of production shifts to the defendants, who must proffer
a legitimate, nondiscriminatory reason for the challenged employment action. Id. at 498-99. If
the defendants articulate such a reason, the presumption of discrimination falls away, and the
plaintiff must prove that the reason offered by the defendants was pretextual. Id. at 499. In other
words, to survive summary judgment, a plaintiff must offer evidence from which a reasonable
jury could conclude that an adverse action taken by the defendants was motivated by
discrimination. Dall v. St. Catherine of Siena Med. Ctr., 966 F. Supp. 2d 167, 187 (E.D.N.Y.
2013) (citing Summa v. Hofstra Univ., 708 F.3d 115, 125 (2d Cir. 2013)).
There is no dispute that Plaintiff is a member of a protected class or that she was
subjected to an adverse employment action. Plaintiff’s discrimination claims fail, however,
because she has failed to adduce facts that give rise to an inference of discrimination. Plaintiff
fails, for example, to provide direct evidence of discrimination, such as inflammatory or
discriminatory comments regarding Plaintiff’s gender. See, e.g., Delia v. Donahoe, 862 F. Supp.
2d 196, 219-20 (E.D.N.Y. 2012) (granting defendant’s motion for summary judgment on
discrimination claim where Plaintiff “ha[d] not pointed to any direct evidence of discrimination,
such as disparaging comments”); accord Haskell v. Kaman Corp., 743 F.2d 113, 119 (2d Cir.
1984).
Plaintiff has similarly failed to provide any indirect evidence of discrimination. As a
threshold matter, it is a well-settled, albeit not dispositive, principle that where the alleged
discriminator is a member of the same protected class as Plaintiff, an inference against
discrimination exists and claims of discrimination become less plausible. Meyer v. State of New
10
York Office of Mental Health, 174 F. Supp. 3d 673, 687 (E.D.N.Y. 2016), aff’d sub nom. Meyer
v. New York State Office of Mental Health, 679 F. App’x 89 (2d Cir. 2017). Here, like Plaintiff,
Ms. Wanat, Ms. Rohde, and Ms. Noll, who were primarily responsible for handling Plaintiff’s
discipline and ultimate termination, are all female. This fact raises an inference against gender
discrimination.
Moreover, Plaintiff has not identified any comparators whose treatment by Defendants
would support an inference of gender discrimination. Plaintiff charges that she was disciplined
for conduct that went without punishment when committed by her male co-workers. (Pl.’s Mem.
in Opp. 9, 11, ECF No. 104.) Plaintiff also maintains that Defendants gave males preferential
treatment, contending, among other things, that Ms. Rohde “played favorites” with the males
working at the Northville ICF and excused their failure to perform their job duties. (Defs.’ Reply
56.1 ¶ 61.) When relying on evidence of disparate treatment to raise an inference of
discrimination, a plaintiff must show that she was similarly situated in all material respects to the
individuals with whom she seeks to compare herself. Mandell v. County of Suffolk, 316 F.3d
368, 379 (2d Cir. 2003) (quoting Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000)).
In the context of allegations of disparately administered discipline, a plaintiff is only similarly
situated to individuals who were subject to the same workplace standards and engaged in
conduct of comparable seriousness. See Graham, 230 F.3d at 40 (“[A] plaintiff must show that
her co-employees were subject to the same performance evaluation and discipline standards. . . .
[T]he standard . . . requires Plaintiff to show that similarly situated employees who went
undisciplined engaged in comparable conduct.”).
Here, the undisputed facts show that male employees at the Northville ICF were
disciplined, and in some cases terminated, for engaging in conduct similar to, and at times less
11
egregious than, Plaintiff’s. (Pl.’s 56.1 ¶¶ 200, 202.) For example, Ms. Rohde counseled C.H., a
male DSP, on March 12, 2009, regarding various job performance issues, including his hours and
attendance. (Id. ¶ 203.) C.H. was terminated on or about March 24, 2009, for excessive
absenteeism and lateness, loafing on the job, and not completing work. (Id. ¶ 204.) On May 4,
2009, L.B., another male DSP at the Northville ICF, received a written warning for failure to
report to a mandatory in-service training. (Id. ¶ 206.) On May 5 and May 6, 2009, L.B. failed to
comply with ADD’s procedures for notifying supervisory staff of latenesses or absences. (Id. ¶
207.) On May 11, 2009, Ms. Noll terminated L.B. for his “no call no show” attendance issues.
(Id. ¶ 208.) On September 1, 2009, Ms. Rohde counseled M.L., another male DSP at the
Northville ICF, regarding what Ms. Rohde considered to be unacceptable documentation of
consumer records. (Id. ¶ 212.) Similarly, on October 21, 2009, Ms. Rohde counseled male
employee Q.M. for his failure to complete the required data entries for consumers under his care.
(Id. ¶ 215.) On August 12, 2010, P.B., a male DSP, was counseled regarding incomplete data
entries regarding a consumer under his care. (Id. ¶ 211.) On April 15, 2010, P.B. was counseled
regarding a missing entry in his time records. (Id. ¶ 210.)
In other words, the record establishes that male employees were reprimanded, and in
some cases terminated, for engaging in conduct similar to that of Plaintiff. Further, there is no
evidence before the Court that would indicate that those who were reprimanded for absences or
lateness had attendance records even approaching Plaintiff’s record of an astonishing forty-four
absences and eighty-five late arrivals in less than a year’s time. As such, the Court finds that
Plaintiff has not raised an inference of discrimination, and therefore fails to make out a prima
facie case of discrimination under both Title VII and the NYSHRL.
12
Further, even if Plaintiff could make out a prima facie case of gender discrimination, her
claim still fails under the second and third prongs of the McDonnell Douglas framework. As to
the second prong, Plaintiff was subjected to discipline for her violations of the company policies
outlined in ADD’s employee handbook, particularly the rules regarding lateness and
absenteeism. 6 Indeed, it is undisputed that, between February 2009 and January 2010, Plaintiff
failed to come to work on forty-four occasions and was late for work on eighty-five occasions.
(Id. ¶ 108.) The application of neutral company policies is “by definition” a legitimate, nondiscriminatory reason for a particular action. See Raytheon Co. v. Hernandez, 540 U.S. 44, 51
(2003); see also Sethi v. Narod, 12 F. Supp. 3d 505, 547-548 (E.D.N.Y. 2014) (allotting plaintiff
paid vacation time in a manner consistent with a neutrally applied company policy was a
legitimate, non-discriminatory reason for denying plaintiff’s request for additional vacation
days).
In the face of Defendants’ patently non-discriminatory reasons for terminating Plaintiff’s
employment, Plaintiff has offered no evidence to suggest that the enforcement of the policies at
issue here was anything other than neutral. Thus, these claims also fail at the third stage of the
McDonnell framework. See Raytheon, 540 U.S. at 51-52 (plaintiff could not survive summary
6
Plaintiff submitted an affidavit and other additional exhibits to this Court on April 3, 2017, well past the deadline
to submit her 56.1 statement and exhibits and without this Court’s leave to do so. Accordingly, the Court struck the
affidavit and exhibits as out of time. The Court further notes that Plaintiff failed to properly authenticate any of her
exhibits. However, even considering all of the belatedly submitted exhibits and crediting Plaintiff’s testimony in her
affidavit that she was unaware of her set schedule and that she was not scheduled to work on the morning of July 2,
2010, Plaintiff’s claims still fail. This subjective and self-serving conclusion is insufficient to raise a triable issue of
fact. See Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998) (“The non-moving party may not rely on conclusory
allegations or unsubstantiated speculation [to survive summary judgment].”). Further, even if Plaintiff did properly
dispute the accuracy of her disciplinary and time records, that alone would not carry her burden. See Wade v. N.Y.
City Dep’t of Educ., No. 11-cv-5278, 2014 WL 941754, at *9 (S.D.N.Y. Mar. 10, 2014) (“That Plaintiff disputes the
accuracy of the nondiscriminatory justification for her termination is not enough to establish pretext.”). An
employer may terminate an employee for any reason or no reason at all, as long as it is not discriminatory. Baldwin
v. North Shore Univ. Hosp., 470 F. Supp. 2d 225, 233 (E.D.N.Y. 2007) (“However, there is the general rule that an
employer can suspend or discharge an employee at will for any reason, wise or unwise, fair or unfair, as long as this
decision is not based on discrimination.”).
13
judgment absent evidence that company’s policy against rehiring employees that had violated
company rules was a pretext for discrimination); Joseph v. Owens & Minor Distrib., Inc., 5 F.
Supp. 3d 295, 313-14 (E.D.N.Y. 2014) (plaintiff failed to establish prima facie case of
discrimination where defendant articulated non-discriminatory reason for termination, including
complaints from customers, but plaintiff did not provide evidence of pretext). Defendants’
motion for summary judgment as to Plaintiff’s gender discrimination claims is granted.
II.
Plaintiff’s NYSHRL Retaliation Claims
Plaintiff also claims that Defendants retaliated against her for her complaints of
discriminatory conduct. 7 Claims of retaliation under the NYSHRL are also examined under the
McDonnell Douglas burden-shifting standard. Summa, 708 F.3d at 125 (applying McDonnell
Douglas test to retaliation claims under Title VII and NYSHRL). At the first step of this test, a
plaintiff must establish a prima facie case of retaliation. Fincher v. Depository Trust & Clearing
Corp., 604 F.3d 712, 720 (2d Cir. 2010). To establish a prima facie case of retaliation, a plaintiff
must show: (1) participation in a protected activity; (2) defendant’s knowledge of the same
activity; and (3) an adverse employment action that is (4) causally connected to the protected
activity. Weber v. City of New York, 973 F. Supp. 2d 227, 266 (E.D.N.Y. 2013).
Here, Plaintiff cannot make out a prima facie case of retaliation under the NYSHRL
because she has failed to establish a causal connection between any protected activity and an
adverse employment action. A plaintiff may establish a causal connection either through direct
evidence of retaliatory animus or indirectly through circumstantial evidence. Butler v. Potter,
7
Plaintiff has provided a number of other bases for her termination. During her deposition, Plaintiff testified at
least six times that she was terminated in retaliation for her complaints about consumer abuse. (Pl.’s 56.1 ¶ 196.)
At other points in Plaintiff’s deposition, she testified that she did not know why ADD terminated her. (Id. ¶ 199.)
Plaintiff also advised the New York State Department of Labor that she was terminated for reporting bed bugs at the
Northville ICF. (Id. ¶ 197.) These are not legally actionable bases for a retaliation claim.
14
No. 06-cv-3828, 2009 WL 804722, at *11 (E.D.N.Y. Mar. 26, 2009). The record is utterly
devoid of any direct evidence of retaliatory animus. For example, there is no evidence that
Defendants threatened Plaintiff or made comments that would indicate that Defendants had any
retaliatory motive. See Douglas v. Hip Centralized Laboratory Services, Inc., No. 03-cv-205,
2005 WL 1074959, at *3 (E.D.N.Y. Apr. 29, 2005) (collecting cases and finding no direct
evidence of retaliatory animus where plaintiff did not adduce evidence of retaliatory statements);
cf. Mandell, 316 F.3d at 383 (direct evidence of retaliatory animus found where termination
letter stated that plaintiff was being moved for having “branded the entire department as racists
and anti-semites”); Riisna v. Am. Broad. Cos., Inc., 219 F. Supp. 2d 568, 571 (S.D.N.Y. 2002)
(finding direct evidence of retaliatory animus where email stated that plaintiff was being
removed from project because she had filed an EEOC charge against the company).
Where there is no direct evidence of retaliatory animus, proof of causation may be shown
indirectly by demonstrating that the protected activity was followed closely by a retaliatory
action. Id.; Frazier v. City of N.Y. Dep’t of Correction, No. 14-cv-1224, 2016 WL 4444775, at
*4 (E.D.N.Y. Aug. 23, 2016) (citing Butts v. N.Y.C. Dep’t of Hous. Pres. & Dev., 307 F. App’x
596, 599 (2d Cir. 2009)). The Second Circuit has not defined a “bright line” setting the outer
limits beyond which a temporal relationship is too attenuated to establish a causal relationship.
Frazier, 2016 WL 4444775, at *4 (citing Gorman-Bakos v. Cornell Co-op Extension of
Schenectady County, 252 F.3d 545, 554 (2d Cir. 2001)). However, district courts in this Circuit
have “consistently held that a passage of more than two months between the protected activity
and the adverse employment action does not allow for an inference of causation.” Id. (collecting
cases); see also Clark County School District v. Breeden, 532 U.S. 268, 273-74 (2001) (citing
with approval cases dismissing retaliation claims where there was a three- to four-month gap
15
between protected activity and adverse employment action); Yarde v. Good Samaritan Hosp.,
360 F. Supp. 2d 552, 562 (S.D.N.Y. 2005) (“Three months is on the outer edge of what courts in
this circuit recognize as sufficiently proximate to admit of an inference of causation.”).
Here, Plaintiff contends that she complained to Defendants about the differential
treatment of males, but it is undisputed that she cannot remember when she made these
complaints. (Pl.’s 56.1 ¶ 228.) In addition, Plaintiff’s EEOC charge and federal complaint were
both filed after she was terminated. On this record, Plaintiff cannot rely on temporal proximity
to raise an inference of retaliatory animus, and she thereby fails to make out a prima facie case of
retaliation. Accordingly, her NYSHRL retaliation claim fails, and summary judgment is
therefore warranted as to this claim.
CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment is granted in its
entirety, and Plaintiff’s claims are dismissed, with prejudice. The Clerk of the Court is
respectfully requested to enter judgment accordingly and close the case.
SO ORDERED:
/s/ LDH
LASHANN DEARCY HALL
United States District Judge
Dated: Brooklyn, New York
September 30, 2017
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