Collazo v. The County of Suffolk, New York et al
Filing
49
MEMORANDUM & ORDER granting in part and denying in part 45 Motion for Summary Judgment; For the forgoing reasons, Defendants' motion for summary judgment is GRANTED IN PART and DENIED IN PART. Summary judgment on Plaintiff's Title VII d iscrimination claim is DENIED with respect to Plaintiff's claim that being stripped of her responsibilities, isolated from her co-workers, and having information withheld constituted adverse actions that took place under circumstances giving ris e to an inference of discrimination. The Court GRANTS summary judgment on Plaintiff's Title VII discrimination claim with respect to Plaintiff's alleged adverse employment actions of being prohibited from speaking Spanish, assigned a dispro portionate amount of work, involuntarily transferred, suspended without pay, and constructively discharged. Summary judgment on Plaintiff's Title VII retaliation claim is DENIED with respect to Plaintiff's claim that Defendants retaliated against her by withholding documents, stripping her of her responsibilities, acting hostile, assigning her an isolated cubicle, depriving her of a multiline phone, providing her with a malfunctioning badge, and failing to assign her work at the Smit htown Center. The Court GRANTS summary judgment on Plaintiff's Title VII retaliation claim with respect to Plaintiff's claim that Defendants retaliated against her by issuing a negative performance evaluation, filing the Misconduct Charges and suspending her without pay, reporting her receipt of HEAP benefits, and threatening to forward the Misconduct Charges to the District Attorney if she did not resign. The Court DENIES summary judgment on Plaintiff's Section 1983 claim again st D'Ambrosio. The Court DENIES summary judgment on Plaintiff's Section 1983 claim against the County regarding the County's deliberate indifferent to Plaintiff's complaint to Commissioner Blass and GRANTS summary judgment on Plaintiff's Section 1983 claim of the County's deliberate indifference to her complaint to Knappe. So Ordered by Judge Joanna Seybert on 2/17/2016. C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------x
MARIA COLLAZO,
Plaintiff,
-against-
MEMORANDUM & ORDER
12-CV-2196(JS)(GRB)
COUNTY OF SUFFOLK and NANCY D’AMBROSIO,
in her individual capacity pursuant to
42 U.S.C. § 1983,
Defendants.
-------------------------------------x
APPEARANCES
For Plaintiff:
Scott M. Mishkin, Esq.
Kyle T. Pulis, Esq.
Scott Michael Mishkin, P.C.
One Suffolk Square, Suite 520
Islandia, NY 11749
For Defendant:
Rudolph Max Baptiste, Esq.
Suffolk County Attorney’s Office
100 Veteran’s Memorial Highway
Hauppauge, NY 11788
Plaintiff
Maria
Collazo
(“Plaintiff”
or
“Collazo”)
commenced this action alleging violations of Title VII of the Civil
Rights Act of 1964 as amended, 42 U.S.C. §§ 2000 et. seq. (“Title
VII”), and 42 U.S.C. § 1983 (“Section 1983”) in connection with
discrimination
and
national origin.
retaliation
based
on
race,
ethnicity,
(See Am. Compl., Docket Entry 22.)
and
Presently
pending before the Court is the motion for summary judgment filed
by defendants County of Suffolk (“the County”) and Nancy D’Ambrosio
(collectively, “Defendants”).
(Defs.’ Mot., Docket Entry 45.)
For the following reasons, Defendants’ motion is GRANTED IN PART
and DENIED IN PART.
BACKGROUND1
I.
Factual Background
Collazo is a Puerto Rican female who identifies as
Latina/Hispanic.
(Defs.’ 56.1 Stmt., Docket Entry 39-1, ¶ 7.)
Collazo’s first language was Spanish but she speaks English at
home.
(Defs.’ 56.1 Stmt. ¶ 7.)
Collazo began employment with
defendant County of Suffolk (the “County”) on or about June 6,
1994.
(Pl.’s 56.1 Counterstmt., Docket Entry 47-1, ¶ 55.)
In or
about March 2008, Collazo began working as a supervisor in the
Home Energy Assistance Program (“HEAP”) unit of the County’s
Department
of
Social
Services
(“DSS”),
which
assists
needy
residents with utilities. (Defs.’ 56.1 Stmt. ¶¶ 1- 3, 6.) Collazo
alleges
that
she
“received
praise
and
positive
performance
evaluations throughout her employment at the County.”
(Pl.’s 56.1
Counterstmt. ¶ 61.)
Collazo alleges that in September 2008, defendant Nancy
D’Ambrosio (“D’Ambrosio”) called her and advised that she was
transferring to HEAP and “was not familiar with the department,
and that she was going to need plaintiff to help her in any way
The following material facts are drawn from Defendants’ Local
Civil Rule 56.1 Statement and Plaintiff’s Local Civil Rule 56.1
Counterstatement. Any relevant factual disputes are noted.
1
2
that she could.”
(Pl.’s 56.1 Counterstmt. ¶ 9.)
In or about
October 2008, D’Ambrosio began working as the HEAP Coordinator and
served
as
D’Ambrosio
Collazo’s
reported
management analyst.
supervisor.
to
Kenneth
(Defs.’
Knappe
56.1
Stmt.
(“Knappe”),
a
¶
4.)
project
(Defs.’ 56.1 Stmt. ¶ 40.)
Defendants allege that Collazo and D’Ambrosio “enjoyed
an
office
friendship”
and
that
D’Ambrosio
daughter’s wedding in or about March 2009.
¶ 9.)
attended
Collazo’s
(Defs.’ 56.1 Stmt.
Defendants allege that Collazo “volunteered” to make
D’Ambrosio
coffee,
while
Collazo
avers
that
she
occasionally
assisted D’Ambrosio with making coffee “because it appeared that
[D’Ambrosio] was struggling due to her disability.”
Stmt. ¶ 38; Pl.’s 56.1 Counterstmt. ¶ 9.)
(Defs.’ 56.1
Collazo also alleges
that D’Ambrosio expected that she make her coffee every day,
including during meetings, but she did not require that other
employees make her coffee.
(Pl.’s 56.1 Counterstmt. ¶ 9.)
Collazo alleges that D’Ambrosio used racial epithets at
work and referred to Ila Vora (“Vora”), who is Indian, as a “slum
dog.”
(Pl.’s 56.1 Counterstmt. ¶ 9.)
Collazo asserts that other
employees overheard D’Ambrosio’s “racial comments” and found them
to be derogatory.
(Pl.’s 56.1 Counterstmt. ¶ 9.)
Collazo alleges that she frequently spoke to two other
Spanish-speaking employees, Donatila Melgar and Alicia Davila, in
Spanish about work-related subjects.
3
(Pl.’s Counterstmt. ¶¶ 67-
68.)
Collazo also alleges that in or about July 2009, D’Ambrosio
told her that she and other Spanish-speaking employees “could no
longer speak Spanish at work,” but D’Ambrosio did not prohibit
other employees from speaking in their native languages.
56.1 Counterstmt. ¶¶ 69, 72.)
(Pl.’s
Collazo alleges that D’Ambrosio
“overall gave preferential treatment to the non-Hispanic employees
in plaintiff’s unit.”
(Pl.’s 56.1 Counterstmt. ¶ 9.)
While
Defendants allege that “[t]here is no County or Suffolk DSS policy
prohibiting or limiting the use of Spanish in the workplace,”
Collazo disputes this characterization.
Pl.’s 56.1 Counterstmt. ¶ 8.)
(Defs.’ 56.1 Stmt. ¶ 8;
Defendants allege that D’Ambrosio
hired temporary employees to assist the County’s Spanish speaking
population in applying for benefits.
(Defs.’ 56.1 Stmt. ¶ 31.)
Collazo alleges that shortly after D’Ambrosio told her
to stop speaking Spanish, she began withholding documents and
information
position.
that
were
necessary
for
Collazo
(Pl.’s 56.1 Counterstmt. ¶ 9.)
to
perform
her
Collazo avers that
D’Ambrosio stripped her of her responsibilities and that their
relationship
was
Counterstmt. ¶ 9.)
“hostile”
by
August
2009.
(Pl.’s
56.1
During that same month, Collazo alleges that
D’Ambrosio referred her as “senorita” during a phone conversation.
(Pl.’s 56.1 Counterstmt. ¶ 5.)
Additionally, Collazo alleges that
in August 2009, Knappe indicated that he wanted her to participate
in
interviewing
and
hiring
temporary
4
HEAP
employees
with
D’Ambrosio; however, D’Ambrosio would not permit Collazo to be
involved in the hiring process.
A.
(Pl.’s 56.1 Counterstmt. ¶ 9.)
Collazo’s Internal Complaints and Requests to Transfer
In August 2009, Collazo requested a transfer during a
meeting with Knappe.
(Defs.’ 56.1 Statement ¶ 5.)
During this
meeting, Collazo complained to Knappe about being required to make
coffee and being prohibited from speaking Spanish but she did not
request that any action be taken against D’Ambrosio.
Stmt.
¶
49.)
Collazo
alleges
that
Knappe
(Defs.’ 56.1
“agreed
that
[D’Ambrosio’s] behavior was inappropriate” but Collazo and Knappe
agreed that she should not transfer out of D’Ambrosio’s department
at that time.
(Pl.’s 56.1 Counterstmt. ¶ 5.)
In late August 2009, Collazo contacted DSS Commissioner
Gregory
Blass’
(“Commissioner
Blass”)
office.
Counterstmt. ¶ 5; Defs.’ 56.1 Stmt. ¶ 19.)
(Pl.’s
56.1
Collazo’s call was
transferred to Knappe and Collazo advised Knappe of D’Ambrosio’s
treatment and requested a transfer.
¶ 5.)
(Pl.’s 56.1 Counterstmt.
Collazo took one week off from work at Knappe’s advice;
when she returned to work, she was told that her transfer request
was denied. (Pl.’s 56.1 Counterstmt. ¶ 5.) On or about August 20,
2009, Collazo made a renewed request to transfer from HEAP to the
DSS Service Center in Coram, citing her and her husband’s health,
her grandchild obligations, and her desire to work closer to her
5
home.
(Defs.’ 56.1 Stmt. ¶ 10.)
transfer request was denied.
Plaintiff alleges that this
(Pl.’s 56.1 Counterstmt. ¶ 80.)
On or about September 16, 2009, Collazo renewed her
request to transfer during a meeting with Commissioner Blass and
Assistant Commissioner for Personnel Traci Barnes (“Barnes”).
(Defs.’ 56.1 Stmt. ¶ 19.) Collazo again complained about preparing
coffee for D’Ambrosio and being prohibited from speaking Spanish
in the workplace.
(Defs.’ 56.1 Stmt. ¶ 50.)
Defendants allege
that Barnes denied Collazo’s transfer request by telephone “based
on DSS operational need.”
B.
(Defs.’ 56.1 Stmt. ¶ 20.)
Smithtown Center
In or about October 2009, HEAP relocated to the Smithtown
DSS Service Center (the “Smithtown Center”).2
¶ 12.)
Defendants allege that D’Ambrosio played no part in
“supervising or executing” HEAP’s relocation.
¶ 33.)
(Defs.’ 56.1 Stmt.
(Defs.’ 56.1 Stmt.
However, Collazo alleges that D’Ambrosio was responsible
for assigning cubicles at the Smithtown Center and that her
assigned cubicle rendered her isolated from her coworkers.
56.1 Counterstmt. ¶ 33.)
(Pl.’s
Collazo further alleges that she was
“not assigned any work at the Smithtown Center.”
(Pl.’s 56.1
While Plaintiff’s 56.1 Counterstatement states that HEAP
relocated in or about September 2009, Plaintiff’s deposition
testimony confirms that HEAP relocated to the Smithtown Center
in October 2009. (See Pl.’s 56.1 Counterstmt. ¶¶ 9, 12; Pl.’s
Dep. Tr., Docket Entry 45-4, 343:11-344:9.)
2
6
Counterstmt. ¶ 9.)
Collazo also alleges that she was the only
individual
who
issues
difficulty
entering
¶ 47.)
had
the
with
her
security
building.”
(Pl.’s
badge
56.1
and
“had
Counterstmt.
Defendants aver that Suffolk DSS Special Investigations
Unit (“SIU”) programmed and issued security door access badges for
the HEAP offices at the Smithtown Center.
(Defs.’ 56.1 Stmt. ¶
47.)
Collazo
also
alleges
that
when
HEAP
relocated,
her
multiline telephone and long distance capabilities were removed
even though she was required to contact Albany.
Counterstmt. ¶ 9.)
Collazo
was
Before HEAP moved to the Smithtown Center,
assigned
capabilities.
(Pl.’s 56.1
a
multiline
phone
with
(Pl.’s 56.1 Counterstmt. ¶ 42.)
long
distance
Collazo alleges
that she was the only supervisor in her department that was not
provided with a multiline telephone.
(Pl.’s 56.1 Counterstmt.
¶ 91.) Defendants allege that when HEAP relocated to the Smithtown
Center it switched to a call center and that D’Ambrosio was not
assigned to and did not “play any role in” the call center. (Defs.’
56.1 Stmt. ¶¶ 37, 45.)
D’Ambrosio and call center employees
received training on multiline phones through DSS information
technology.
telephones
(Defs.’ 56.1 Stmt. ¶ 46.)
to
call
D’Ambrosio’s secretary.
center
staff,
DSS assigned multiline
Vora,
D’Ambrosio,
(Defs.’ 56.1 Stmt. ¶ 42.)
and
Defendants
allege that after Collazo complained, in writing, to Knappe and
7
D’Ambrosio regarding her inability to make long distance phone
calls, DSS “rectified the issue.”
(Defs.’ 56.1 Stmt. ¶ 44.)
Defendants allege that D’Ambrosio directed Collazo to request
training on the multiline telephones.
(Defs.’ 56.1 Stmt. ¶ 48.)
However, Collazo alleges that she “requested training on the call
center and multiline phones but never received any.”
(Pl.’s 56.1
Counterstmt. ¶ 37.)
C.
NYSDHR Complaint
On
October
29,
2009,
Collazo
filed
a
complaint
“regarding race, national origin or ethnic discrimination relating
to D’Ambrosio” with the New York State Division of Human Rights
(the “NYSDHR Complaint”).
(Defs.’ 56.1 Stmt. ¶ 21.)
The NYSDHR
Complaint was sent to Defendants on November 5, 2009.
56.1 Stmt. ¶ 21.)
(Defs.’
Defendants allege that D’Ambrosio was not aware
of Collazo’s prior complaints to Barnes or Commissioner Blass until
Plaintiff served her NYSDHR Complaint.
(Defs.’ 56.1 Stmt. ¶ 51.)
Collazo
alleges
disputes
this
assertion
and
that
D’Ambrosio
reported to Knappe, who Collazo had complained to on multiple
occasions, and that Collazo, Knappe, and D’Ambrosio met to discuss
Collazo’s transfer out of D’Ambrosio’s department.
Counterstmt.
¶
51.)
Particularly,
Collazo
(Pl.’s 56.1
alleges
that
in
September 2009, D’Ambrosio was aware of her complaint to Knappe
and was aware of her complaint about the “senorita” comment.
(Pl.’s
56.1
Counterstmt.
¶¶
86-87.)
8
Collazo
alleges
that
D’Ambrosio was named in the NYSDHR complaint but she was not
questioned, interviewed, or disciplined.
(Pl.’s 56.1 Counterstmt.
¶ 95.)
D.
Southwest Center
On November 2, 2009, Collazo took a medical leave of
absence due to depression and anxiety and did not return to work
until August 23, 2010.
(Defs.’ 56.1 Stmt. ¶ 16.)
When Collazo
returned to work, she was reassigned from HEAP to the Undercare
unit at the Southwest DSS Service Center (the “Southwest Center”).
(Defs.’ 56.1 Stmt. ¶ 22.)
Collazo alleges that her supervisor at
the Southwest Center, Steven Kramarcik (“Kramarcik”), “observed
that [Collazo] always did a great job.”
(Pl.’s 56.1 Counterstmt.
¶ 25.) Collazo alleges that she advised Kramarcik about the NYSDHR
Complaint
and
D’Ambrosio,
she
complained
particularly,
to
him
D’Ambrosio
about
her
requiring
issues
that
she
with
make
coffee and “ma[king] her do chores because she was Hispanic.”
(Pl.’s 56.1 Counterstmt. ¶ 25.)
Collazo
avers
that
in
October
2010,
Audrey
Baird
(“Baird”) replaced Kramercik as the Center Manager of the Southwest
Center.
(Pl.’s 56.1 Counterstmt. ¶ 25.)
D’Ambrosio “in any capacity or form.”
Baird did not work with
(Defs.’ 56.1 Stmt. ¶ 41.)
Collazo alleges that on Baird’s first day, she advised Baird of
her issues with D’Ambrosio and her NYSDHR complaint.
Counterstmt. ¶ 25.)
9
(Pl.’s 56.1
Collazo
received
a
verbal
reprimand
and
negative
performance evaluation dated December 13, 2010 based on her failure
to perform her job.
(Defs.’ 56.1 Stmt. ¶ 25; Dec. 13, 2010
Reprimand, Defs.’ Ex. P, Docket Entry 45-17.)
Defendants allege
that this verbal reprimand only remained in Collazo’s personnel
file for six months and would have been removed had no further
incidents been reported.
(Defs.’ 56.1 Stmt. ¶ 35.)
However,
Collazo alleges that Baird completed this performance evaluation
based on less than one-month of observing Collazo despite the fact
that performance evaluations are to be completed on the anniversary
of
the
employee’s
hire
date
each
year
with
Collazo’s
hire
“anniversary” being in June. (Pl.’s 56.1 Counterstmt. ¶¶ 25, 117.)
Collazo alleges that she had never received a negative evaluation
before and she filed a “rebuttal” to Baird’s evaluation.
(Pl.’s
56.1 Counterstmt. ¶ 25.)
E.
Collazo’s Application for HEAP Benefits
Collazo alleges that in or about November 2008, she
“applied for a HEAP benefit because her husband had suffered a
stroke, and she advised Nancy D’Ambrosio of her intention to apply
for same.”
(Pl.’s 56.1 Counterstmt. ¶ 18.)
Collazo further
alleges that in March 2009, she applied for another HEAP benefit
and
advised
D’Ambrosio
Counterstmt. ¶ 18.)
that
Collazo
never
of
her
application.
(Pl.’s
56.1
Defendants dispute this assertion and allege
informed
D’Ambrosio
10
that
she
considered
applying for HEAP benefits or that her household had applied for
emergency HEAP benefits.
(Defs.’ 56.1 Stmt. ¶ 52.)
Collazo avers
that Deborah Harrigan--who did not work in Collazo’s department
and was not under her supervision--reviewed her HEAP application.
(Pl.’s 56.1 Counterstmt. ¶ 18.)
Ms. Harrigan submitted Collazo’s
HEAP application “to be processed by accounting.”
Counterstmt. ¶ 18.)
Collazo alleges that she did not “sign off”
on her own HEAP application.
F.
(Pl.’s 56.1
(Pl.’s 56.1 Counterstmt. ¶ 18.)
DSS Investigation of Collazo
In or about October 2009, shortly after the relocation
of HEAP to the Smithtown Center, Collazo and other employees met
with
an
SIU
interviews.
investigator
and
were
(Defs.’ 56.1 Stmt. ¶ 13.)
provided
notices
for
SIU
Plaintiff was originally
scheduled to meet with SIU on October 22, 2009; however, she
obtained an adjournment to November 2, 2009.
¶ 14.)
(Defs.’ 56.1 Stmt.
Collazo alleges that her attorney was unavailable and that
he requested the adjournment.
(Pl.’s 56.1 Counterstmt. ¶ 14.)
Collazo did not honor her November 2, 2009 interview and did not
subsequently reschedule.
(Defs.’ 56.1 Stmt. ¶ 15.)
Sometime
between October 22, 2009 and November 2, 2009, Collazo learned
that Camille Bolster, a temporary HEAP employee, was investigated
for “sign[ing] off” on her daughter’s HEAP benefit application and
ultimately terminated from DSS.
Dep. Tr., 394:14-394:19.)
11
(Defs.’ 56.1 Stmt. ¶ 17; Pl.’s
On
or
about
September
24,
2010,
SIU
commenced
an
investigation with respect to allegations of fraud in connection
with two emergency HEAP benefits that were received by Collazo’s
household.
(Defs.’ 56.1 Stmt. ¶ 18.)
The SIU investigation was
commenced based upon information provided by D’Ambrosio, Vora, and
two other HEAP employees.
(Defs.’ 56.1 Stmt. ¶ 18.)
Collazo
alleges that D’Ambrosio “reported to supervisors the possibility
that [Collazo] fraudulently received 2 HEAP benefits.”
(Pl.’s
56.1 Counterstmt. ¶ 18.)
On or about October 18, 2010, Collazo was served with
charges
and
specifications
of
incompetence
and/or
misconduct
pursuant to New York Civil Service Law Section 75 (the “Misconduct
Charges”) and suspended for thirty days without pay.
Stmt. ¶ 23.)
(Defs.’ 56.1
Collazo and the County proceeded to arbitration on
the Misconduct Charges and presented testimony and witnesses on
five days between June 1, 2011 and March 12, 2012 (the “Section 75
Hearing”).
(Defs.’ 56.1 Stmt. ¶ 27.)
In an Arbitration Opinion
and Award dated July 11, 2012 (the “Arbitration Decision”), the
arbitrator sustained one charge and one specification of employee
misconduct with respect to Collazo’s receipt of two emergency HEAP
benefits; found “just cause for discipline”; and recommended a
demotion to a non-supervisory position.
(Defs.’ 56.1 Stmt. ¶ 28.)
Collazo does not dispute that she recorded the Section 75 Hearing
12
without the consent of the parties or witnesses.
(Def.’s 56.1
Stmt. ¶ 30; Pl.’s 56.1 Counterstmt. ¶ 30.)
Collazo commenced a proceeding in the New York State
Supreme Court, Suffolk County and asserted claims of “arbitral
misconduct,
partiality
and
(Defs.’ 56.1 Stmt. ¶ 29.)
Arbitration
Decision
bias”
(the
“State
Court
Collazo alleges that she appealed the
based
on
“ex
parte
conversations
arbitrator held without [her] attorney present.”
Counterstmt. ¶ 28.)
Action”).
the
(Pl.’s 56.1
The state court affirmed the Arbitration
Decision in an Order dated January 2, 2014 (the “State Court
Decision”).
(Defs.’ 56.1 Stmt. ¶ 29.)
or subject to criminal prosecution.
Collazo was not arrested
(Defs.’ 56.1 Stmt. ¶ 43.)
Collazo alleges that she filed an appeal of the State Court
Decision, which is currently pending.
(Pl.’s 56.1 Counterstmt.
¶ 28.)
Collazo
alleges
that
she
did
not
“engage
in
any
fraudulent conduct” by applying for HEAP benefits because: (1) the
money discovered in her account during the investigation was from
her income tax return and had been “earmarked” to pay property
taxes; (2) “real estate taxes are exempt as a resource under the
HEAP guidelines and do not need to be reported” and Collazo had no
other
resources
“categorically
to
report;
eligible
to
and
(3)
apply
13
Collazo’s
because
her
household
was
daughter
was
receiving SSI and her husband was disabled and over 60.”
(Pl.’s
56.1 Counterstmt. ¶ 113.)
G.
Transfer to Food Stamps Under Care
In or about December 2010, Collazo took a second medical
leave of absence that ended in November 2011.
¶ 24.)
(Defs.’ 56.1 Stmt.
When Collazo returned to work in or about December 2011,
she was transferred to Food Stamps Under Care with Baird serving
as her supervisor along with Christopher Wittneban (“Wittneban”).
(Pl.’s 56.1 Counterstmt. ¶¶ 121-22.)
Collazo alleges that in or
about December 2011, she emailed her union vice president to
complain
about
a
“Hostile
Counterstmt. ¶ 123.)
Work
Environment.”
56.1
Collazo alleges that she also advised
Wittneban of her NYSDHR complaint against D’Ambrosio.
Counterstmt. ¶ 124.)
(Pl.’s
(Pl.’s 56.1
Collazo alleges that she was “subjected to
increased supervision” by Baird and Wittneban, as Baird “walked
back and forth in front of [Collazo’s] office, accessed [Collazo’s]
computer when [Collazo] was at lunch, and required [Collazo] to
submit her work to [Wittneban] everyday at the end of the day.”
(Pl.’s 56.1 Counterstmt. ¶ 125.)
Collazo further avers that her
coworkers were not subjected to the same treatment and despite her
complaint, “nothing was done.”
(Pl.’s 56.1 Counterstmt. ¶¶ 125-
26.)
H.
Collazo’s Resignation
14
On or about May 25, 2012, Collazo resigned from DSS
effective June 4, 2012. (Defs.’ 56.1 Stmt. ¶ 26.) Collazo alleges
that she “did not voluntarily resign, as she was threatened that
if she did not resign, that the alleged Section 75 charges would
be
forwarded
prosecution.”
alleges
that
to
the
District
Attorney’s
office
(Pl.’s 56.1 Counterstmt. ¶ 26.)
on
or
about
May
8,
2013,
she
for
criminal
Collazo further
requested
reinstated but did not receive a response from the County.
to
be
(Pl.’s
56.1 Counterstmt. ¶ 26.)
II.
Defendants’ Motion for Summary Judgment
On August 24, 2015, Defendants filed a motion for summary
judgment.
(See Defs.’ Mot.)
Defendants allege that Plaintiff has
failed to sufficiently link racial animus to the allegation that
D’Ambrosio
made
her
prepare
and
serve
coffee
in
light
of
Plaintiff’s failure to mention race when complaining to Knappe and
Barnes.
(Defs.’ Br., Docket Entry 45-26, at 5.)
Similarly,
Defendants allege that D’Ambrosio’s conduct was not sufficiently
severe and pervasive to create a hostile work environment and
Plaintiff’s reliance on derogatory remarks directed at another coworker is misplaced.
(Defs.’ Br. at 6-7.)
Defendants also argue
that Plaintiff has failed to establish an adverse employment action
or that she was constructively discharged.
27.)
(Def.’s Br. at 23-
In any event, Defendants allege that they had a legitimate,
non-discriminatory reason for any adverse employment actions-15
namely, Plaintiff’s misconduct in failing to provide notice to her
superiors that she was making a HEAP application.
28.)
(Defs.’ Br. at
Furthermore, Plaintiff failed to present evidence that the
Arbitration Decision was “was wrong as a matter of fact” or that
the arbitrator’s impartiality was otherwise compromised.
(Def.’s
Br. at 29.)
Defendants
argue
that
Plaintiff’s
allegations
of
a
“policy inimical to Spanish speaking in the DSS’ workplace” are
without merit.
(Defs.’ Br. at 8.)
To the contrary, DSS routinely
attempts to assist the County’s Spanish-speaking population and
D’Ambrosio sought out employees who spoke Spanish.
8.)
has
(Defs.’ Br. at
Defendants note that Plaintiff is bilingual and aver that she
not
established
that
Defendants’
alleged
English-only
workplace created a hostile work environment.
(Defs.’ Br. at 8-
9.)
instruction
Defendants
Plaintiff
inform
argue
her
that,
D’Ambrosio’s
subordinates
“supported by business necessity.”3
not
to
speak
Spanish
that
was
(Defs.’ Br. at 14.)
The Court notes the dispute of fact as to D’Ambrosio’s
directive regarding speaking Spanish. Plaintiff’s 56.1
Counterstatement asserts that D’Ambrosio “told plaintiff that
her, Donatila [Melgar] and Alicia [Davila] were prohibited from
speaking Spanish while at work.” (Pl.’s 56.1 Counterstmt.
¶ 69.) However, Defendants’ memorandum of law cites to the
Amended Complaint and states that “plaintiff alleged that her
boss, Ms. D’Ambrosio, specifically instructed her to direct her
Spanish-speaking coworkers to stop speaking in their native
language in the workplace amongst each other because this made
her feel uncomfortable.” (Defs.’ Br. at 8 (citing Am. Compl.
¶¶ 18-19).) Curiously, the paragraphs of the Amended Complaint
3
16
Defendants argue that Plaintiff has similarly failed to
establish a retaliation claim. (Defs.’ Br. at 30-34.) Plaintiff’s
misconduct
charges
were
founded
individuals other than D’Ambrosio.
in
information
obtained
(Def.’s Br. at 31.)
by
Moreover,
the “alleged adverse employment actions plaintiff complains of
were in motion and/or the culmination of an ongoing process which
predated the alleged protected activity, and thus there can be no
retaliation.”
(Def.’s Br. at 34.)
Defendants also argue that D’Ambrosio is entitled to
qualified
immunity
regarding
(Defs.’ Br. at 14-17.)
Plaintiff’s
Section
1983
claim.
At the time that D’Ambrosio issued her
directive that Plaintiff and other employees not speak Spanish in
the workplace, it was not clearly established that an English-only
policy
was
unlawful
and
the
Second
Circuit
still
has
not
established that bilingual employees have a constitutional right
to conduct business in a foreign language.
(Defs.’ Br. at 17-19.)
Defendants also argue that Plaintiff has failed to set forth a
claim for municipal liability.
(Defs.’ Br. at 19-23.)
Defendants
allege that D’Ambrosio, a mid-level manager who did not have hiring
cited by Defendants assert only that the County had a policy of
discrimination because Defendants “banned all Hispanic speakers
from speaking Spanish while at work, while permitting employees
of other ethnic backgrounds to speak in their non-English
languages, such as Italian” and that D’Ambrosio was Plaintiff’s
supervisor and had the authority to hire, fire, and discipline
DSS employees. (Am. Compl. ¶¶ 18-19.)
17
and firing authority, was not a final policymaker and thus could
not
have
formulated
purposes.
an
English-only
policy
for
Section
1983
(Def.’s Br. at 21-22.)
A.
Plaintiff’s Opposition
Plaintiff alleges that she has stated a prima facie claim
for discrimination based on race and national origin.
Docket Entry 47, at 5.)
(Pl.’s Br.,
Plaintiff is Puerto Rican and a member of
a protected class and she was qualified for her position at DSS.
(Pl.’s Br. at 5.)
Further, Plaintiff suffered the following
adverse employment actions: (1) being assigned a disproportionate
amount of work by being required to make coffee for D’Ambrosio and
others;
(2)
being
prohibited
from
speaking
Spanish
in
the
workplace; (3) being stripped of her responsibilities and isolated
from
her
colleagues;
information
withheld;
(4)
(5)
having
being
necessary
denied
the
documents
and
opportunity
to
interview temporary employees; (6) being transferred; (7) being
suspended without pay; and (8) being constructively discharged.
(Pl.’s Br. at 5.)
Plaintiff also alleges that these adverse
employment actions occurred under circumstances that give rise to
a discriminatory inference because non-Hispanic employees were not
required to make coffee and did not have their responsibilities
stripped
or
documents
withheld;
non-Hispanic
employees
were
permitted to speak in their native languages; and D’Ambrosio made
derogatory
comments
about
ethnicity.
18
(Pl.’s
Br.
at
6-7.)
Plaintiff argues that Defendants have failed to proffer a nondiscriminatory reason for these actions.
Plaintiff
also
argues
that
she
was
(Pl.’s Br. at 7.)
constructively
discharged
because: (1) her work environment was rendered “intolerable” as a
result of harassment and retaliation, which persisted even after
she complained to her union vice president, and (2) in 2012
Plaintiff was threatened with criminal prosecution if she did not
resign.
(Pl.’s Br. at 25.)
Plaintiff
retaliation.
alleges
she
has
stated
engaged
Plaintiff
that
a
claim
in
the
following
for
protected
activities: (1) internal complaints to Knappe, Commissioner Blass,
and Barnes about D’Ambrosio requiring that she make coffee; (2)
other
internal
complaints
to
Knappe,
Commissioner
Blass,
and
Barnes and requests to transfer out of D’Ambrosio’s department;
(3)
internal
complaints
to
Kramarcik;
(4)
filing
the
NYSDHR
complaint; (5) advising Kramarcik, Baird, and Wittneban about her
issues with D’Ambrosio and NYSDHR complaint; and (6) complaining
to her union vice president about a hostile work environment.
(Pl.’s Br. at 11-12.)
Plaintiff
in
response
Moreover, D’Ambrosio’s actions against
to
her
complaints
constituted
adverse
actions that would dissuade a reasonable employee from making or
supporting a discrimination charge.
(Pl.’s Br. at 13-14.)
These
actions are causally related to Plaintiff’s complaints based on
temporal
proximity
and
D’Ambrosio’s
19
awareness
of
Plaintiff’s
complaints and “retaliatory animus towards her.”
(Pl.’s Br. at
16.)
Plaintiff alleges that her Section 1983 claims against
the
County
should
not
be
dismissed
because
the
County
was
deliberately indifferent to her constitutional rights by failing
to investigate her complaints or discipline D’Ambrosio.
Br. at 18.)
(Pl.’s
Plaintiff avers that D’Ambrosio is not entitled to
qualified immunity as she “should have known that creating a
hostile
work
environment
and
treating
plaintiff
differently
because of her race and national origin violated plaintiff’s
clearly established constitutional and statutory rights.”
(Pl.’s
Br. at 20-21.)
B.
Defendants’ Reply
Defendants argue that Plaintiff has failed to establish
adverse
employment
actions.
Particularly,
Plaintiff
has
not
identified the specific work that D’Ambrosio withheld and, in any
event, Plaintiff was not reprimanded or negatively evaluated by
D’Ambrosio.
(Defs.’
Reply
Br.,
Docket
Entry
48-2,
at
3.)
Plaintiff has also failed to demonstrate that her inability to
interview
temporary
employees
(Defs.’ Reply Br. at 4.)
transfer
Decision.
were
“warranted
resulted
in
a
negative
effect.
Further, Plaintiff’s suspension and
and
vindicated”
(Defs.’ Reply Br. at 4.)
by
the
Arbitration
Plaintiff has also failed to
proffer admissible proof that she was assigned more work than other
20
HEAP employees.
(Defs.’ Reply Br. at 4.)
Defendants allege that
they have non-discriminatory reasons for Plaintiff’s suspension,
demotion,
transfer,
internal
investigation,
and
disciplinary
arbitration as requiring bilingual employees to speak English
while conducting official business is a “business necessity,” and
if Plaintiff was treated differently, it is because she was the
only HEAP supervisor investigated for misconduct.
(Defs.’ Reply
Br. at 5-6.)
Defendants also argue that Plaintiff has failed to set
forth a retaliation claim.
(Defs.’ Reply Br. at 6-8.)
Defendants
allege that Kramarcik perceived Plaintiff’s venting as warranting
only “a sympathetic ear” and Baird reasoned that since Plaintiff’s
past issues with D’Ambrosio occurred in a different department,
she was not authorized to act on those complaints.
Br. at 6-7.)
(Defs.’ Reply
Further, D’Ambrosio was “duty bound” to disclose
Plaintiff’s misconduct.
(Defs.’ Reply Br. at 6.)
Plaintiff also
failed to demonstrate any connection between Baird’s negative
performance evaluation and D’Ambrosio’s alleged discrimination,
and Plaintiff’s complaints about her telephone and door access key
were resolved after she brought them to D’Ambrosio’s attention.
(Defs.’ Reply Br. at 7.)
Additionally, Defendants aver that
Plaintiff did not complain about racial discrimination prior to
filing the NYSDHR Complaint.
(Defs.’ Reply Br. at 8.)
21
DISCUSSION
I.
Legal Standard
Summary
judgment
will
be
granted
where
the
movant
demonstrates that there is “no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
FED. R. CIV. P. 56(a).
A genuine factual issue exists where “the
evidence is such that a reasonable jury could return a verdict for
the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248, 106 S. Ct. 2505, 2510 91 L. Ed 2d 202 (1986).
In
determining whether an award of summary judgment is appropriate,
the
Court
considers
the
pleadings,
deposition
testimony,
interrogatory responses, and admissions on file, together with
other firsthand information that includes but is not limited to
affidavits.
Nnebe v. Daus, 644 F.3d 147, 156 (2d Cir. 2011).
The movant bears the burden of establishing that there
are no genuine issues of material fact.
Gallo v. Prudential
Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994).
Once
the movant makes such a showing, the non-movant must proffer
specific facts demonstrating “a genuine issue for trial.”
Giglio
v. Buonnadonna Shoprite LLC, No. 06-CV-5191, 2009 WL 3150431, at
*4 (E.D.N.Y. Sept. 25, 2009) (internal quotation marks and citation
omitted).
Conclusory allegations or denials will not defeat
summary judgment.
Id.
However, in reviewing the summary judgment
record, “‘the court is required to resolve all ambiguities and
22
draw all permissible factual inferences in favor of the party
against whom summary judgment is sought.’”
Sheet Metal Workers’
Nat’l Pension Fund v. Vadaris Tech. Inc., No. 13-CV-5286, 2015 WL
6449420, at *2 (E.D.N.Y. Oct. 23, 2015) (quoting McLee v. Chrysler
Corp., 109 F.3d 130, 134 (2d Cir. 1997)).
The Second Circuit has expressed the need for caution in
awarding summary judgment to the defendant in a discrimination
case where “the merits turn on a dispute as to the employer’s
intent.”
2008).
Holcomb v. Iona College, 521 F.3d 130, 137 (2d Cir.
Notwithstanding the Court’s need for caution, “[i]t is now
beyond cavil that summary judgment may be appropriate even in the
fact-intensive context of discrimination cases. . . courts are not
to treat discrimination differently from other ultimate questions
of fact.”
599,
Pacheco v. N.Y. Presbyterian Hosp., 593 F. Supp. 2d
608-609
(S.D.N.Y.
2009)
(internal
quotation
marks
and
citations omitted; alteration in original).
II.
Title VII Discrimination Claim
Title
VII
prohibits
discrimination
“against
any
individual with respect to his compensation, terms, conditions, or
privileges
of
employment,
because
of
such
individual’s
color, religion, sex, or national origin.”
2(a)(1).
race,
42 U.S.C. 2000-e
Title VII claims are analyzed under the burden-shifting
framework detailed in McDonnell Douglas Corp. v. Green, 411 U.S.
792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).
23
Ruiz v. Cty. of
Rockland, 609 F.3d 48, 491 (2d Cir. 2010).
forth
a
prima
facie
claim
for
The plaintiff sets
intentional
discrimination
by
demonstrating 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 action
occurred
under
circumstances
discriminatory intent.”
giving
rise
to
an
inference
of
Sethi v. Narod, 12 F. Supp. 3d 505, 522
(E.D.N.Y. 2014) (internal quotation marks and citations omitted).
Once the plaintiff makes a prima facie showing, the burden shifts
to
the
defendant
to
proffer
a
“legitimate,
nondiscriminatory
reason for [the adverse employment] action.” Id. If the defendant
presents such a reason, the burden returns to the plaintiff to
establish pretext by demonstrating that the defendant “was in fact
motivated in part by the prohibited discriminatory animus.”
Id.
Defendants do not dispute that Plaintiff is a member of
a protected class who was qualified for her position.
Court
must
determine
whether
Plaintiff
suffered
Thus, the
an
adverse
employment action that took place under circumstances that give
rise to a discriminatory inference.
A.
Adverse Employment Action
An adverse employment action occurs where an employee
suffers “a materially adverse change in the terms and conditions
of employment.” Tolbert v. Smith, 790 F.3d 427, 435 (2d Cir. 2015)
(internal quotation marks and citation omitted).
24
To qualify as
materially
adverse,
the
change
in
the
employee’s
working
conditions must be “more disruptive than a mere inconvenience or
an alteration of job responsibilities.”
marks and citation omitted).
Id. (internal quotation
Examples of adverse employment
actions include a termination, demotion evidenced by a wage or
salary decrease, a “less distinguished title,” material reduction
of
benefits,
or
a
significant
diminishing
of
material
responsibilities. Sethi, 12 F. Supp. 3d at 523 (internal quotation
marks and citation omitted).
Plaintiff alleges that Defendants subjected her to the
following adverse employment actions: (1) prohibiting her from
speaking
Spanish
disproportionate
in
the
amount
of
workplace;
(2)
work;
transferring
(3)
assigning
her
her;
a
(4)
suspending her without pay; (5) stripping her of responsibilities;
(6)
isolating
her
from
her
colleagues,
withholding
necessary
documents, and denying her the opportunity to interview temporary
employees; and (7) constructively discharging her.
at 5.)
(See Pl.’s Br.
The Court will address each alleged adverse employment
action in turn.
1.
Prohibition on Speaking Spanish
Requiring that an employee not speak Spanish around her
co-workers “is not itself an adverse employment action.”
Lopez v.
Flight Servs. & Sys., Inc., 881 F. Supp. 2d 431, 440 (W.D.N.Y.
2012) (Holding, in the context of employment discrimination claims
25
under 42 U.S.C. § 1981 and state law, that one plaintiff could not
demonstrate an adverse employment action because he was not fired
for speaking Spanish but the co-plaintiff raised triable issues of
fact because he was fired for speaking Spanish in contravention of
Defendants’ English-only policy.).
Plaintiff has failed to allege
that any negative consequences inured from her speaking Spanish in
the workplace; thus, D’Ambrosio’s prohibition on speaking Spanish
at HEAP does not constitute an adverse employment action.
2.
Disproportionate Amount of Work
The assignment of a disproportionate amount of work may
constitute an adverse employment action “if the additional work
significantly changed the employee’s responsibilities so as to
diminish that worker’s role or status, or exposed the worker to
dangerous
or
extreme
conditions
not
appropriate
to
her
job
classification.” Chacko v. Conn., No. 07-CV-1120, 2010 WL 1330861,
at *7 (D. Conn. Mar. 30, 2010) (internal quotation marks and
citation omitted).
See also Feingold v. N.Y., 366 F.3d 138, 153
(2d Cir. 2004) (Holding that the plaintiff’s assignment of a
“disproportionately
heavy
employment action.).
regularly
make
and
workload”
constituted
an
adverse
The Court finds that being required to
serve
coffee
to
D’Ambrosio
did
not
so
significantly change Plaintiff’s responsibilities as to diminish
her role or status.
that
demonstrate
Additionally, Plaintiff has not adduced facts
being
required
26
to
make
coffee
rendered
her
workload “disproportionately heavy” as compared to other HEAP
employees.
Accordingly, in the context of this case, the alleged
requirement that Plaintiff make and serve D’Ambrosio coffee does
not constitute an adverse employment action.
3.
Job Transfers
Even absent a loss in salary, a “nominally lateral
transfer” can be considered an adverse employment action under
Title VII.
Pacheco, 593 F. Supp. 2d at 617.
“The key in this
analysis is that the plaintiff must show that the transfer created
a materially significant disadvantage.”
quotation
marks
and
citation
Id. 617-18 (internal
omitted)
(Holding
that
the
plaintiff’s transfer, even when viewed as involuntary, did not
constitute an adverse employment action as it was not “tantamount
to demotion” and did not result in a change in pay or benefits.).
Plaintiff has not alleged that her respective transfers to the
Southwest Center and to Food Stamps Under Care were “tantamount to
demotion,” altered her pay or benefits, or resulted in another
material
disadvantage.
Plaintiff’s
transfers
Accordingly,
do
not
the
constitute
Court
adverse
finds
that
employment
actions.
4.
Suspension Without Pay
The Court finds that Plaintiff’s thirty-day suspension
without
pay
conditions
of
constitutes
Plaintiff’s
a
materially
employment
27
adverse
and,
change
accordingly,
in
is
the
an
adverse employment action.
See, e.g., Page v. Conn. Dep’t of
Public Safety, Div. of State Police, 185 F. Supp. 2d 149, 157 (D.
Conn. 2002) (Noting that in the Second Circuit, “suspension without
pay constitutes adverse employment action.”); Stembridge v. City
of N.Y., 88 F. Supp. 2d 276, 283 (S.D.N.Y. 2000) (Holding that a
factfinder could conclude that the plaintiff’s six-day suspension
without pay constituted an adverse employment action).
But see
Martinez v. Conn., State Library, 817 F. Supp. 2d 28, 41 (D. Conn.
2011) (Holding that the plaintiff’s one-day suspension without pay
did not constitute an adverse employment action).
5.
Other Employment Actions
Plaintiff relies on her deposition testimony to support
the notion that D’Ambrosio stripped her of her responsibilities
and
withheld
testified
necessary
that
she
was
documents.
not
Particularly,
receiving
work,
her
Plaintiff
supervisory
functions were being performed by D’Ambrosio, and her work was
delegated to temporary employees.
(Pl.’s Dep. Tr. 218:22-219:3.)
Plaintiff also testified that a list that she was required to
reconcile was not provided to her until one month after it was
received
by
HEAP.
(Pl.’s
Dep.
Tr.
213:25-214:7.)
Though
Plaintiff’s support is thin, the Court finds that Plaintiff has
raised triable issues of fact as to whether D’Ambrosio’s removal
of
work
and
responsibilities
and
withholding
documents constitute adverse employment actions.
28
of
necessary
See Lorenzo v.
St. Luke’s-Roosevelt Hosp. Ctr., 837 F. Supp. 2d 53, 61 (E.D.N.Y.
2011) (Holding that the plaintiff demonstrated a prima facie case
for an ADEA adverse employment action where she was “gradually
stripped of all her accounting and bookkeeping functions,” not
provided with information needed to prepare financial reports, and
excluded from meetings.) (internal quotation marks and citation
omitted).
But see Davis v. Verizon Wireless, 389 F. Supp. 2d 458,
469 (W.D.N.Y. 2005) (Holding, in the context of a Title VII sexual
harassment claim, that “[w]ithin the context of this case, merely
ignoring an employee or depriving her of being present at certain
meetings or having certain responsibilities does not rise to the
level of an adverse employment action.”).
Plaintiff has also raised issues of fact regarding her
assignment to a cubicle that rendered her isolated from her
colleagues as such action could be “materially adverse” to her
employment.
However, the Court finds that being denied the
opportunity to interview temporary employees does not constitute
an adverse employment action, particularly in light of Plaintiff’s
failure
to
allege
that
interviewing
temporary
employees
had
previously been one of her job responsibilities.
6.
An
Constructive Discharge
employee
is
constructively
discharged
“when
an
employer ‘intentionally creates a work atmosphere so intolerable
that [the plaintiff] is forced to quit involuntarily.’”
29
Edwards
v. Huntington Union Free Sch. Dist., 957 F. Supp. 2d 203, 213
(E.D.N.Y. 2013) (internal quotation marks and citations omitted;
alteration in original).
The constructive discharge standard is
“demanding” and it will not be satisfied based on difficult or
unpleasant working conditions or the plaintiff’s preference to no
longer work for her employer.
Id.
Rather, the plaintiff must
present evidence: “(1) that the employer acted deliberately or
intentionally in bringing about the complained of work conditions,
and (2) that the conditions were ‘intolerable.’”
Id. (citing
Petrosino v. Bell Atl., 385 F.3d 210, 229 (2d Cir. 2004)).
Proof
of the employer’s specific intent is not required; however, the
plaintiff must at least establish “that the employer’s actions
were
deliberate
and
not
merely
negligent
or
ineffective.”
Petrosino, 385 F.3d at 229 (internal quotation marks, citation,
and
alterations
omitted).
Additionally,
the
Court
analyzes
whether the employer’s deliberate actions created work conditions
sufficiently intolerable to compel resignation “objectively by
reference to a reasonable person in the employee’s position.”
Id.
at 230.
Plaintiff appears to assert two theories of constructive
discharge: Defendants’ harassment and retaliation and the County’s
threat of termination. The Court will address each theory in turn.
30
i.
Harassment and Retaliation
Plaintiff posits the conclusory allegations that her
work
environment
was
rendered
“intolerable”
due
to
“regular
harassment and retaliation”; she was forced to take two medical
leaves as a result of the harassment; and the retaliation and
harassment
continued
after
she
complained
president about a hostile work environment.
to
her
union
vice
(Pl.’s Br. at 25.)
The Court disagrees and finds that Plaintiff has not stated a prima
facie case for a hostile working environment and has failed to
demonstrate that a reasonable person would be compelled to resign
based on the alleged harassment and retaliation by Defendants.
See O’Neal v. State Univ. of N.Y., No. 01-CV-7802, 2006 WL 3246935,
at *12 (E.D.N.Y. Nov. 8, 2006) (Noting, in the context of a gender
discrimination claim, that “constructive discharge is a ‘worse
case’
harassment
scenario,
a
hostile
working
environment
‘ratcheted up to the breaking point,’” and holding that plaintiff’s
constructive discharge claim must fail based on her failure to
demonstrate a hostile work environment.) (quoting Penn. State
Police v. Suders, 542 U.S. 129, 147, 124 S. Ct. 2342, 2355 (2004)).
Parenthetically,
president
in
when
December
Plaintiff
2011,
complained
she
was
no
to
her
longer
union
vice
working
in
D’Ambrosio’s department and the alleged harassment and retaliation
consisted of increased supervision by Baird and Wittneban to the
extent that Baird regularly passed by Plaintiff’s office, accessed
31
Plaintiff’s computer while she was at lunch, and required that
Plaintiff submit her work to Wittneban each day.
(See Pl.’s 56.1
Counterstmt. ¶ 125.)
ii.
Threat of Criminal Charges
While an employer’s threat of termination may suffice to
establish a constructive discharge, it is not sufficient for the
plaintiff
to
resign
rather
than
face
potential
charges or to merely fear being terminated.
disciplinary
Dall v. St. Catherine
of Siena Med. Ctr., 966 F. Supp. 2d 167, 177-78 (E.D.N.Y. 2013)
(collecting cases).
See also Bailey v. N.Y. City Bd. of Educ.,
536 F. Supp. 2d 259, 266 (E.D.N.Y. 2007) (“[W]hen an employee
resigns
rather
resignation
discharge.”).
than
cannot
respond
later
to
be
disciplinary
construed
as
charges,
a
the
constructive
But see Valdes v. N.Y. City Dep’t of Envtl. Prot.,
No. 95-CV-10407, 1997 WL 666279, at *3 (S.D.N.Y. Oct. 27, 1997)
(Noting that “an employer’s clearly expressed desire that an
employee resign has been held sufficient to find a constructive
discharge.”).
Courts in this Circuit have also refused to find a
constructive discharge where “an employee had an avenue through
which he could seek redress for the allegedly ‘intolerable’ work
atmosphere leading up to his resignation, but failed to take
advantage thereof.”
Silverman v. City of N.Y., 216 F. Supp. 2d
108, 115-16 (E.D.N.Y. 2002), aff’d, 64 F. App’x 799 (2d Cir. 2003)
(Declining to find a constructive discharge on the plaintiff’s
32
employment discrimination claims under 42 U.S.C. §§ 1981 and 1983
where the plaintiff had the right to a pre-termination hearing
under his collective bargaining agreement and New York Civil
Service Law Section 75.)
But see Gorham v. Town of Trumbull Bd.
of Educ., 7 F. Supp. 3d 218, 232 (D. Conn. 2014) (Holding that the
plaintiff established a constructive discharge as his termination
was “inevitable” he was informed during a disciplinary hearing
that
possible
termination
disciplinary
and
he
was
measures
told
by
the
included
defendant
suspension
and
his
or
union
representative that if he did not resign he would be “charged.”).
Whether
Plaintiff
suffered
a
constructive
discharge
based on Defendants’ threat of criminal charges presents a closer
issue.
Plaintiff testified that prior to the commencement of the
Section 75 Hearing, her attorney was called into the office of the
Director of Labor Relations along with the County Attorney. (Pl.’s
Dep. Tr. 531:18-25.)
Plaintiff’s attorney advised her that Paul
Margiotta4
that
told
him
if
Plaintiff
did
not
resign,
her
The Court is unable to find any reference in the record as to
Mr. Margiotta’s position or role with regard to this matter.
However, the Amended Complaint asserts that on or about
January 23, 2012, the Director of Labor Relations threatened
that if Plaintiff did not resign, the Misconduct Charges would
be forwarded to the District Attorney and the media and criminal
prosecution would be recommended. (Am. Compl. ¶ 122.) As the
parties do not appear to dispute that Plaintiff’s then-counsel
was advised that the Misconduct Charges would be forwarded to
the District Attorney if Plaintiff failed to resign, the Court
need not determine Mr. Margiotta’s specific role in this
incident.
4
33
Misconduct Charges would be forwarded to the District Attorney’s
office.
(Pl.’s Dep. Tr. 531:18-25-532:7.)
Defendants have not
expressly denied this allegation.
The Court finds that Plaintiff has failed to present
evidence from which a trier of fact could find that she was
constructively discharged.
First, the absence of a threat of
termination or repeated threats that the Misconduct Charges would
be forwarded to the District Attorney weighs against a constructive
discharge.
in
Cf. Dall, 966 F. Supp. 2d at 178 (factors considered
determining
whether
an
employer’s
threat
of
termination
establish a constructive discharge include whether such threats
are “repeated, direct, or involved additional adverse conduct”).
Plaintiff does not allege that she was threatened with termination
and cites to only one occasion where her then-attorney was advised
that the Misconduct Charges would be forwarded to the District
Attorney if she did not resign.
Indeed, while Plaintiff relies on
Valdez for support, the plaintiff in that matter was told by his
supervisors that “it was best if he resigned because he was going
to be terminated.”
See Valdez, 1997 WL 666279, at *3.
quotation marks, citation, and alteration omitted).
Pl.’s Br. at 25.)
(internal
(See also
While the Court acknowledges the seriousness of
the alleged threat of criminal prosecution, Plaintiff has not
proffered
evidence
that
she
was
34
faced
with
the
choice
of
resignation
or
termination.
Thus,
it
cannot
be
said
that
Plaintiff’s termination was “inevitable.”
Second,
Plaintiff
participated
in
a
fair
hearing.
Plaintiff opposed the Misconduct Charges before an arbitrator and
resigned after the Arbitration Hearing had concluded but before a
decision was issued.
(Defs.’ 56.1 Stmt. ¶¶ 26-28.)
Although
Plaintiff sought to set aside the Arbitration Decision based on
arbitrator
misconduct,
the
State
Court
Decision
upheld
the
Arbitration Decision. (Jan. 2, 2014 Decision, Defs.’ Ex. S, Docket
Entry 45-20.)
Accordingly, Plaintiff’s opportunity to address the
Misconduct Charges at the Arbitration Hearing and the state court’s
rejection of her allegations of arbitrator misconduct also weighs
against a finding that Plaintiff was constructively discharged.
Cf.
Stembridge,
88
F.
Supp.
2d
at
280-85
(Holding
that
the
plaintiff failed to establish a constructive discharge because a
rational juror could not find that a reasonable person in the
plaintiff’s position would have been compelled to resign “in light
of
the
fair
hearing
independent arbiter.”).
and
opportunity
to
be
heard
before
an
But see Varone v. City of N.Y., No. 02-
CV-1089, 2003 WL 21787475, at *14 (S.D.N.Y. Aug. 4, 2003) (Holding,
in the context of claims under the Rehabilitation Act of 1973,
Americans with Disabilities Act, and state law, that the plaintiff
presented sufficient evidence for a jury to find that he was
constructively discharged despite the fact that he resigned a few
35
days after his hearing before an administrative law judge and a
few weeks prior to his hearing before the NYSDHR.).
Thus, Plaintiff has failed to set forth a prima facie
case for constructive discharge.
were
to
Plaintiff
find
that
Plaintiff
has
failed
to
In any event, even if the Court
was
state
a
constructively
prima
facie
discharged,
case
that
such
constructive discharge took place under circumstances giving rise
to an inference of discrimination. The County’s threat of criminal
prosecution was made at the commencement of the Arbitration Hearing
in 2011, approximately two years after Plaintiff made her internal
complaints and NYSDHR Complaint and D’Ambrosio made her “senorita”
comment and English-only directive.
532:15.)
Plaintiff
has
not
(See Pl.’s Dep. Tr. 531:17proffered
any
evidence
of
discriminatory animus with respect to the County’s threat of
criminal prosecution.
B.
Inference of Discrimination
An
circumstances
inference
that
of
include:
discrimination
(1)
criticism
can
of
be
the
found
in
employee’s
performance using “ethnically degrading” language; (2) “invidious
comments” regarding other individuals in the employee’s protected
group; (3) treating individuals outside the employee’s protected
group more favorably; (4) the circumstances leading up to the
adverse employment action; and (5) evidence that the employer
treated the employee “less favorably than a similarly situated
36
employee outside his protected group.”
Setelius v. Nat’l Grid
Elec. Servs. LLC, No. 11-CV-5528, 2014 WL 4773975, at *9 (E.D.N.Y.
Sept. 24, 2014) (internal quotation marks and citations omitted).
The standard for whether an inference of discrimination can be
drawn is flexible and no specific type of proof is required.
1.
Id.
Suspension Without Pay
The Court finds that Plaintiff has failed to set forth
a prima facie showing that her suspension without pay arose under
circumstances
giving
rise
to
an
inference
of
discrimination.
Plaintiff was no longer working in D’Ambrosio’s department at the
time of her suspension.
(Defs.’ 56.1 Stmt. ¶¶ 22-23.)
Plaintiff
has not alleged that a similarly situated employee that engaged in
the same behavior was not suspended without pay, nor has she
alleged that any racially charged comments were made in close
proximity to her suspension. See, e.g., Shepherd v. BCBG Max Azria
Grp., Inc., No. 11-CV-7634, 2012 WL 4832883, at *16 (S.D.N.Y. Oct.
11, 2012), report and recommendation adopted, 2012 WL 6150854
(S.D.N.Y. Dec. 10, 2012) (Holding that a comment made one year
before
the
plaintiff’s
discriminatory animus).
termination
did
not
establish
In any event, Defendants’ filing of the
Misconduct Charges constitutes a legitimate, non-discriminatory
reason
for
suspending
Plaintiff
determination of those charges.
without
pay
pending
the
(See Oct. 18, 2010 Ltr., Defs.’
Ex. O, Docket Entry 45-16.)
37
2.
Other Adverse Employment Actions
The Court finds that Plaintiff has made a prima facie
showing
that
stripped
of
her
her
remaining
adverse
responsibilities,
employment
having
actions--being
necessary
documents
withheld, and being placed in an isolated cubicle--arose under
circumstances
giving
rise
to
an
inference
of
discrimination.
Plaintiff alleges that these adverse actions took place during
August and October 2009.
92; see supra n.2.)
(Pl.’s 56.1 Counterstmt. ¶¶ 82-83, 90,
D’Ambrosio issued her English-only directive
in July 2009 and made the “senorita” comment in August 2009.5
(Pl.’s 56.1 Counterstmt. ¶¶ 68-69, 77-79.)
The temporal proximity
of these incidents to the adverse employment actions raises an
inference of discrimination.
See Setelius, 2014 WL 4773975, at *9
(the events leading up to the adverse employment action may
establish
an
inference
of
discrimination).
Additionally,
Plaintiff has alleged that other HEAP employees were permitted to
speak in their native language in the workplace while she and other
Hispanic employees were barred from speaking Spanish.
(Pl.’s 56.1
Counterstmt. ¶ 72.)
Rather than asserting a non-discriminatory purpose for
these adverse actions, Defendants essentially argue, somewhat
As Plaintiff has relied on a disparate treatment theory of
discrimination rather than a hostile work environment, the Court
finds that D’Ambrosio’s alleged reference to Ms. Vora as a
“slumdog” is not relevant. (See Pl.’s 56.1 Counterstmt. ¶ 74.)
5
38
circuitously, that D’Ambrosio’s stray “senorita” remark is not
actionable under Title VII; that there is no English-only policy
at
DSS;
courts
in
this
Circuit
have
held
that,
in
certain
circumstances, an English-only workplace is not discriminatory;
and that Plaintiff cannot prove discrimination because she is
bilingual.
(Defs.’ Br. at 8-11.)
The Court disagrees and finds
that Plaintiff has proffered evidence of pretext and could satisfy
her ultimate burden of demonstrating intentional discrimination.
Although
the
“‘stray
remarks
of
a
decision-maker,
without more, cannot prove a claim of employment discrimination,’”
the comments at issue will no longer be considered “stray” if
“‘other indicia of discrimination are properly presented [so that]
the jury has a right to conclude that they bear a more ominous
significance.’”
599
(E.D.N.Y.
Johnson v. Cty. of Nassau, 480 F. Supp. 2d 581,
2007)
(internal
quotation
omitted; alteration in original).
marks
and
citations
The remarks at issue are
“significant” where the plaintiff demonstrates their nexus to the
adverse employment action.
Id.
As set forth above, Plaintiff has
demonstrated the temporal proximity of the “senorita” comment to
the adverse employment actions.
Moreover, D’Ambrosio’s “stray”
remark is viewed in conjunction other indicia of discrimination,
namely, D’Ambrosio’s “English-only” directive.
Defendants’
position
that
there
is
no
English-only
policy at DSS actually cuts against the notion that D’Ambrosio’s
39
directive
was
non-discriminatory.
While
Defendants
cite
to
decisions finding English-only policies to be non-discriminatory
when they are based on “business necessity,” if there was no DSS
English-only policy than it follows that there was no business
necessity in D’Ambrosio directing HEAP employees to cease speaking
Spanish.
(See Defs.’ Br. at 9-13.)
Moreover, the Court is unable
to discern what D’Ambrosio’s “business necessity” could be since
she allegedly permitted HEAP employees to speak Italian.
56.1 Counterstmt. ¶ 72.)
(Pl.’s
Cf. Roman v. Cornell Univ., 53 F. Supp.
2d 223, 237 (N.D.N.Y. 1999) (Holding that the defendants had
“legitimate business reasons” for an English-only policy where
their goals were to minimize interpersonal conflicts, and prevent
feelings of exclusion or that individuals are being spoken about
in a foreign language.).
The Court is mindful that courts have been “leery” of
finding pretext regarding an English-only policy where, as here,
the plaintiff is a bilingual.
Perez v. N.Y. and Presbyterian
Hosp., No. 05-CV-5749, 2009 WL 3634038, at *14 (S.D.N.Y. Nov. 3,
2009).
The Court also acknowledges that HEAP’s utilization of
temporary
employees
to
assist
the
County’s
Spanish-speaking
population undercuts an inference of discrimination to the extent
that employees were asked or required to speak Spanish at work.
Id.
However, to the extent that D’Ambrosio’s directive can even
be considered a “policy,” courts have also been “leery” of English40
only policies that prohibit even non-work related communications.6
Id. at *13.
See Pacheco, 593 F. Supp. 2d at 613 (noting that
courts have “distinguished between various types of languagerestriction policies, being more forgiving of those that apply
only to work-related communication and to bilingual employees.”).
Additionally, to the extent that other instances of “racial or
ethnic hostility” by Defendants are considered in analyzing an
English-only policy, the Court finds that a reasonable juror could
determine that D’Ambrosio’s “senorita” remark constitutes evidence
of racial animus with respect to the “English-only” directive.
See also Pacheco, 593 F. Supp. 2d at 612 (“the courts consider,
among other facts, whether there is evidence that the employer, in
addition to adopting an English-only policy, has exhibited other
forms of racial or ethnic hostility”).
Parenthetically,
issues
Plaintiff’s cubicle assignment.
of
fact
exist
regarding
Plaintiff alleges that D’Ambrosio
was responsible for assigning cubicles at the Smithtown Center.
(Pl.’s 56.1 Counterstmt. ¶¶ 90, 93.)
While D’Ambrosio testified
that “someone in administration” was responsible for overseeing
Although Defendants’ reply asserts that an exception to
D’Ambrosio’s “non-policy” existed to permit “employees to speak
whatever language they chose in the breakroom during recognized
break periods,” Defendants fail to cite to any evidence that
would support such an allegation. (Defs.’ Reply at 5.) At the
very least, an issue of fact exists with respect to any
“exceptions” to D’Ambrosio’s prohibition on speaking Spanish in
the workplace.
6
41
the HEAP relocation, she also testified that she “worked with the
supervisors to set [ ] up” the cubicle assignments.
(D’Ambrosio
Dep. Tr., Defs.’ Ex. D, Docket Entry 45-5, 75:9-12, 76:8-12.)
Accordingly, summary judgment on Plaintiff’s Title VII
discrimination claim is DENIED with respect to Plaintiff’s claim
that being stripped of her responsibilities, isolated from her coworkers,
and
having
information
withheld
constituted
adverse
actions that took place under circumstances giving rise to an
inference of discrimination.
The Court GRANTS summary judgment
with respect to Plaintiff’s alleged adverse employment actions of
being
prohibited
disproportionate
from
amount
speaking
of
work,
Spanish,
assigned
involuntarily
a
transferred,
suspended without pay, and constructively discharged.
III. Title VII Retaliation Claim
To
state
a
prima
facie
case
for
retaliation,
the
plaintiff must demonstrate: “(1) participation in a protected
activity
known
to
the
defendant;
(2)
an
employment
action
disadvantaging the plaintiff; and (3) a causal connection between
the
protected
activity
and
the
adverse
employment
action.”
Richardson v. Comm’n on Hum. Rights & Opportunities, 532 F.3d 114,
123 (2d Cir. 2006) (internal quotation marks and citation omitted).
The McDonnell Douglas burden shifting framework is also utilized
in analyzing a Title VII retaliation claim.
2d at 626.
Pacheco, 593 F. Supp.
The plaintiff is not required to prove that her
42
underlying discrimination complaint was meritorious; rather, she
must establish that her complaint “was motivated by a good faith,
reasonable belief that the underlying employment practice was
unlawful.”
Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 843 (2d
Cir. 2015) (internal quotation marks and citation omitted).
The
plaintiff’s burden is “de minimis” and the Court’s role is “to
determine only whether proffered admissible evidence would be
sufficient
to
permit
retaliatory motive.”
a
rational
finder
of
fact
to
infer
a
Hicks v. Baines, 593 F.3d 159, 166 (2d Cir.
2010) (internal quotation marks and citation omitted).
A.
Protected Activity
Plaintiff alleges that she engaged in the following
protected
activities:
(1)
internal
complaints
to
Knappe,
Commissioner Blass, and Barnes about D’Ambrosio requiring that
Plaintiff to make coffee; (2) other internal complaints to Knappe,
Commissioner Blass, and Barnes and requests to transfer out of
D’Ambrosio’s department; (3) internal complaints to Kramarcik;
(4) filing the NYSDHR Complaint; (5) advising Kramarcik, Baird,
and
Wittneban
about
her
NYSDHR
complaint
and
issues
with
D’Ambrosio; and (6) complaining to her union vice president about
a hostile work environment.
(Pl.’s Br. at 11-12.)
“A protected activity is action that protests or opposes
statutorily prohibited discrimination.”
Giscombe v. N.Y. City
Dep’t of Educ., 39 F. Supp. 3d 396, 401 (S.D.N.Y. 2014) (internal
43
quotation marks and citation omitted).
Title
VII
include
informal
Protected activities under
complaints
to
the
plaintiff’s
supervisors, commencing litigation, or filing a formal complaint.
Id.
However, the plaintiff’s complaint must have allowed her
employer
to
“reasonably
have
understood
that
[plaintiff’s]
opposition was directed at conduct prohibited by Title VII.”
Johnson v. City Univ. of N.Y., 48 F. Supp. 3d 572, 577 (S.D.N.Y.
2014) (internal quotation marks and citation omitted).
See also
Lopez, 881 F. Supp. 2d at 444 (“‘[I]mplicit in the requirement
that the employer have been aware of the protected activity is the
requirement
understood,
that
that
it
the
understood,
plaintiff’s
or
could
[complaint]
reasonably
was
have
directed
at
conduct prohibited by Title VII.’”) (quoting Galdieri-Ambrosini v.
Nat’l Realty & Dev. Corp., 136 F.3d 276, 292 (2d Cir. 1998))
(alterations in original).
Plaintiff’s complaint to Knappe, Commissioner Blass, and
Barnes about D’Ambrosio requiring that she make and serve coffee
does not constitute a protected activity as Defendants could not
have
reasonably
understood
that
Plaintiff
was
opposing
discriminatory conduct by lodging general complaints about her
supervisor’s unfair treatment.7
(See Pl.’s 56.1 Counterstmt.
While not addressed in the parties’
Plaintiff alleges that her complaint,
D’Ambrosio regarding her inability to
constitutes a protected activity, the
7
44
briefs, to the extent that
in writing, to Knappe and
make long distance calls
Court similarly finds that
¶ 65.)
Conversely, it is beyond dispute that Plaintiffs’ NYSDHR
Complaint constitutes a protected activity.
Additionally, Plaintiff points to three other internal
complaints: (1) an August 2009 meeting with Knappe; (2) a phone
call with Knappe following Plaintiff’s attendance at a conference
in Albany in August 2009; and (3) Plaintiff’s September 16, 2009
meeting with Commissioner Blass and Barnes.
(See Pl.’s 56.1
Counterstmt. ¶ 80; Pl.’s Dep. Tr. 220:6-221:20, 310:24-312:5,
335:7-338:25.)
protected
These meetings and phone call do not constitute
activities
to
the
extent
that
Plaintiff
requested
transfers as “a transfer request is not a ‘protected activity’
within the meaning of [Title VII].”
Bey v. I.B.E.W. Local Union
#3 Union Reps., 374 F. App’x 187, 188 (2d Cir. 2010).
However,
the Court finds that Plaintiff’s meetings and phone call with
Knappe,
Commissioner
Blass,
and
Barnes
constitute
protected
activities to the extent that Plaintiff lodged informal complaints
regarding D’Ambrosio’s “senorita” reference and prohibition on
speaking Spanish in the workplace.
Plaintiff
avers
that
in
2010,
she
complained
to
Kramarcik about D’Ambrosio requiring her to make coffee and “making
plaintiff do chores for her because she is Hispanic.”
(Pl.’s 56.1
such complaint would not have placed Defendants on notice that
Plaintiff was opposing discriminatory conduct. (See Pl.’s 56.1
Counterstmt. ¶ 44.)
45
Counterstmt. ¶ 81.)
While Kramarcik testified at his deposition
that Plaintiff did not complain to him about D’Ambrosio, he also
testified that Plaintiff spoke to him, “in general,” about her
issues with D’Ambrosio and advised that “she felt that Nancy was
asking her to do chores . . . coffee and things because she was
Hispanic.”
(Kramarcik Dep. Tr., Pl.’s Ex. C., Docket Entry 47-5,
21:22-24:9.)8
The Court finds that Plaintiff has raised an issue
of fact as to whether her conversation with Kramarcik constitutes
an informal complaint and thus a protected activity.
Plaintiff
Wittneban
D’Ambrosio
of
her
do
merely
NYSDHR
not
advising
complaint
constitute
Kramarcik,
and
previous
protected
Baird,
and
issues
with
activities
as
such
disclosures do not qualify as informal complaints and Defendants
would not have reasonably understood that Plaintiff was opposing
discrimination.
Additionally, Plaintiff’s complaint to her union
vice
does
president
not
constitute
a
protected
activity
The Court notes the inconsistency in Plaintiff’s and
Kramarcik’s respective deposition testimonies. (Compare
Kramarcik Dep. Tr. 20:23-21:2 with Pl.’s Aff. dated March 20,
2015, Pl.’s Ex. F, Docket Entry 47-6, at 8-16, ¶ 25.) While
Plaintiff and Kramarcik appear to be in agreement that they
spoke about D’Ambrosio making Plaintiff do “chores” during the
time that Kramarcik served as Plaintiff’s supervisor, Plaintiff
indicates that this conversation occurred in 2010 and Kramarcik
testifies that this conversation occurred in 2009. As
Defendants do not dispute that Kramarcik served as Plaintiff’s
supervisor when she was transferred to the Southwest Center in
2010, the Court credits Plaintiff’s testimony that her
conversation with Kramarcik occurred in 2010.
8
46
as
Defendants cannot be charged with knowledge of such complaint in
the absence of evidence that Plaintiff’s union vice president
“actually brought plaintiff’s discrimination complaints to the
attention of [Defendants].”
Edwards v. Jericho Union Free Sch.
Dist., 55 F. Supp. 3d 458, 468 (E.D.N.Y. 2014).
B.
Adverse Employment Action
An adverse employment action, in the context of a Title
VII retaliation claim, is an action that “‘could well dissuade a
reasonable
worker
from
discrimination.’”
making
or
supporting
a
charge
of
Vega v. Hempstead Union Free Sch. Dist., 801
F.3d 72, 90 (2d Cir. 2015) (quoting Burlington N. & Santa Fe Ry.
Co. v. White, 548 U.S. 53, 57, 126 S. Ct. 2405, 2409, 165 L. Ed.
2d 345 (2006)).
In White, the Supreme Court held that Title VII’s
retaliation provision is broadly applicable to “‘employer actions
that would have been materially adverse to a reasonable employee
or job applicant.’”
Hicks, 593 F.3d at 165 (quoting White, 548
U.S. 53 at 57, 126 S. Ct. at 2409).
The Second Circuit has
articulated several principles derived from the White decision:
(1) Title VII’s anti-retaliation provision is broader than its
anti-discrimination
provision
and
“‘extends
beyond
workplace-
related or employment-related retaliatory acts and harms’”; (2)
the
requirement
that
the
plaintiff
demonstrate
“material
adversity” preserves the principle that Title VII does not create
a code of general civility for the workplace; (3) although White
47
considers a reasonable employee’s perspective and sets forth an
objective standard, “‘context matters’”; and (4) allegations of
retaliation
aggregate”
because
must
in
“even
be
considered
“both
determining
whether
minor
of
acts
an
separately
adverse
retaliation
can
‘substantial in gross’ as to be actionable.”
and
action
be
in
the
occurred
sufficiently
Id. (quoting White,
548 U.S. at 67-69, 126 S. Ct. 2405).
Plaintiff alleges that the following adverse actions
were taken in retaliation for her complaints: (1) D’Ambrosio
withheld documents from her; (2) D’Ambrosio stripped her of her
responsibilities
and
isolated
her
from
her
colleagues;
(3) D’Ambrosio acted hostile towards her; (4) she had desk, phone,
and security badge issues; (5) D’Ambrosio “falsely reported” that
she received a fraudulent HEAP benefit; (6) Section 75 charges
were filed and she received a thirty day suspension without pay;
(7) she was transferred to the Southwest Center and then to the
Food Stamps Unit; (8) she received a negative evaluation; (9) she
was subjected to increased supervision; (10) she was threatened
with criminal prosecution if she failed to resign.
(Pl.’s Br. at
12-13.)9
To the extent Plaintiff argues that her constructive discharge
constitutes an adverse action for retaliation purposes, as set
forth above, Plaintiff has failed to establish that she was
constructively discharged. In any event, the Court finds that
Plaintiff has not set forth a prima facie case that the County’s
threat of forwarding the Misconduct Charges to the District
9
48
Viewing
Plaintiff’s
alleged
adverse
actions
in
the
aggregate, the Court finds that Plaintiff has raised triable issues
of fact as to whether the withholding of documents, stripping of
responsibilities, hostility, assignment to an isolated cubicle,
failure
to
receive
a
multiline
telephone,
security badge constitute adverse actions.
and
malfunctioning
These incidents, to
the extent they were intentional, would dissuade a reasonable
employee from making a discrimination charge.
Putting aside any legitimate, non-discriminatory reasons
offered by Defendants, the Court finds that Plaintiff has also
raised issues of fact as to whether D’Ambrosio’s report that
Plaintiff
received
a
fraudulent
HEAP
benefit
and
Defendants’
threat of criminal prosecution constitute adverse actions.
The
Court also finds that Plaintiff has raised issues of fact as to
whether her negative performance evaluation constitutes an adverse
action.
See Siddiqi v. N.Y. City Health & Hospitals Corp., 572 F.
Supp. 2d 353, 372 (S.D.N.Y. 2008) (“Unlike in discrimination
claims,
negative
performance
adverse
reviews,
employment
standing
action
[on
alone,
a
can
be
considered
an
retaliation
claim].”).
Similarly, Defendants’ filing of Section 75 charges
Attorney absent her resignation was made in retaliation for her
internal complaints and NYSDHR Complaint. Again, the County’s
threat of forwarding the Misconduct Charges to the District
Attorney occurred years after Plaintiff engaged in protected
activities and Plaintiff has made no showing of causation with
respect to such threat.
49
against Plaintiff and suspending her without pay also constitutes
an adverse action.
See Giscombe, 39 F. Supp. 3d at 401 (holding
that “[p]laintiff was subjected to adverse employment action when
he was suspended for six months without pay and when he was
subjected to disciplinary charges”) (citations omitted).
However, Plaintiff has not alleged facts that would
establish that her respective transfers to the Southwest Center
and Food Stamps Under Care constitute adverse actions and the Court
finds
that
these
inconvenience”
or
responsibilities.”
transfers
an
were
nothing
“alteration
more
of
than
a
“mere
[plaintiff’s]
job
Kessler v. Westchester Cty. Dep’t of Social
Servs., 461 F.3d 199, 207 (2d Cir. 2006) (internal quotation marks
and
citation
omitted).
Additionally,
Plaintiff’s
increased
supervision does not constitute an adverse action based on her
failure to allege that she suffered “unfavorable consequences” as
a result of that increased supervision.
Chacko, 2010 WL 1330861,
at *13 (“[t]o qualify as an adverse employment action, excessive
scrutiny
must
be
accompanied
by
unfavorable
consequences”)
(internal quotation marks and citation omitted).
C.
Causation
To establish causation, the plaintiff must show that the
defendant’s retaliation was the “but for” cause of the adverse
employment
action.
Husser
v.
N.Y.
City
Dep’t
of
Educ.,
--- F. Supp. 3d ---, 2015 WL 5774741, at *13 (E.D.N.Y. Sept. 30,
50
2015).
See also Vega, 801 F.3d at 91 (“[B]ut-for causation does
not[, however,] require proof that retaliation was the only cause
of the employer’s action, but only that the adverse action would
not have occurred in the absence of the retaliatory motive.”)
(internal quotation marks and citation omitted; alteration in
original).
The plaintiff may demonstrate that the defendant’s
retaliation was a “but-for” cause of the adverse employment action
by setting forth “weaknesses, implausibilities, inconsistencies,
or
contradictions
in
the
employer’s
proffered
legitimate,
nonretaliatory reasons for its action” from which it could be
concluded that the defendant’s explanations were mere pretext.
Zann Kwan, 737 F.3d at 846.
“A retaliatory purpose can be shown
indirectly by timing: protected activity followed closely in time
by adverse employment action.”
omitted).
Vega, 801 F.3d at 90 (citation
See also Zann Kwan, 737 F.3d at 844 (the “but-for”
standard for causation on a Title VII retaliation claim does not
change the plaintiff’s ability, at the prima facie stage on a
summary judgment motion, to establish causation indirectly by way
of temporal proximity).
1.
Adverse Actions at HEAP
Plaintiff
Defendants
has
retaliated
raised
against
triable
her
by
issues
of
withholding
fact
that
documents,
stripping her responsibilities, acting hostile, assigning her an
isolated cubicle, depriving her of a multiline phone, providing a
51
malfunctioning badge, and failing to assign her work at the
Smithtown Center.
These incidents occurred in August and October
2009 and Plaintiff made internal complaints to Defendants in August
and September of that same year.
Moreover, Plaintiff alleges that
D’Ambrosio became aware of her internal complaints to Knappe in
September
2009.
(Pl.’s
56.1
Counterstmt.
¶
86.)
Indeed,
D’Ambrosio testified at her deposition that she learned that
Plaintiff complained about her to Knappe “sometime in September of
2009.”
(D’Ambrosio’s Dep. Tr. 67:17-21.)
proffered
a
legitimate,
Defendants have not
non-discriminatory
reason
for
these
actions other than to generally assert that HEAP switched to a
call center at the Smithtown Center that D’Ambrosio was not
involved in, DSS “rectified the issue” when Plaintiff complained
about her inability to make long distance calls, and SIU was
responsible for programming security badges.
(Defs.’ 56.1 Stmt.
¶¶ 44-47.)
2.
Negative Performance Evaluations
The Court finds that Plaintiff has not demonstrated
causation with respect to her negative performance evaluation.
Baird completed Plaintiff’s negative performance evaluation and it
is not disputed that Baird did not work with D’Ambrosio “in any
capacity
or
form.”
(Defs.’
56.1
Stmt.
¶
41.)
Plaintiff’s
allegation that performance evaluations are generally completed on
the employee’s start date “anniversary" and her evaluation was
52
completed after working under Baird’s supervision for only a short
time does not suffice to establish direct causation.
Counterstmt. ¶¶ 115-16.)
(Pl.’s 56.1
Moreover, Plaintiff has not established
indirect causation as her protected activities took place in August
through
October
2009
and
Baird’s
performance
evaluation
was
completed over one year later in December 2010.
3.
D’Ambrosio’s Report of Misconduct
The Court finds that Plaintiff has made a prima facie
showing that retaliation was the cause of D’Ambrosio reporting
Plaintiff’s receipt of HEAP benefits.
The parties do not dispute
that SIU began investigating Plaintiff in or about October 2009,
when she and other employees met with an SIU investigator.
There
is also no dispute that D’Ambrosio reported Plaintiff’s allegedly
fraudulent HEAP applications to SIU, although Defendants aver that
her report was based on information disclosed to her by other DSS
employees. (Defs.’ 56.1 Stmt. ¶ 18; Pl.’s 56.1 Counterstmt. ¶ 18.)
D’Ambrosio’s
report
Plaintiff’s
internal
was
made
within
complaints
and
one
to
Plaintiff
two
months
alleges
of
that
D’Ambrosio became aware of her complaints to Knappe in September
2009.
(Pl.’s 56.1 Counterstmt. ¶¶ 86-87.)
Moreover, D’Ambrosio’s
report regarding Plaintiff’s HEAP benefits coincides with the
adverse actions that took place in October 2009.
As previously
noted, Plaintiff also alleges that she informed D’Ambrosio before
53
making her HEAP applications.
(Pl.’s 56.1 Counterstmt. ¶¶ 105-
106.)
However, Defendants have proffered a legitimate, nondiscriminatory
reason
for
D’Ambrosio’s
report
regarding
Plaintiff’s HEAP benefit--namely, that D’Ambrosio was “duty bound”
to report misconduct when it was brought to her attention by DSS
employees.
(Defs’ Reply Br. at 6.)
Defendants also allege that
Plaintiff did not advise D’Ambrosio that she would be applying for
a HEAP benefit.
(Defs.’ 56.1 Stmt. ¶ 52.)
Whether Plaintiff has established pretext presents a
closer
issue.
As
previously
noted,
Plaintiff’s
burden
of
establishing “but-for” causation does not require that she proffer
evidence that retaliation was the sole reason for Defendants’
retaliation; however, Plaintiff must demonstrate that “the adverse
action would not have occurred in the absence of the retaliatory
motive.”
Zann Kwan, 737 F.3d at 845-46 (citing Univ. of Tex. Sw.
Med. Ctr. v. Nassar, 570 U.S. ---, 133 S. Ct. 2517, 2533, 186 L.
Ed. 2d 503 (2013)).
While Plaintiff has raised an issue of fact
as to whether she informed D’Ambrosio prior to filing the HEAP
applications, she does not dispute that D’Ambrosio’s report was
also based on information provided by other HEAP employees. (Pl.’s
56.1 Counterstmt. ¶ 18.)
Moreover, Plaintiff has not established
that D’Ambrosio would not have reported her receipt of HEAP
benefits
in
the
absence
of
a
54
retaliatory
motive.
Although
D’Ambrosio’s report was made within months of Plaintiff’s internal
complaints, “‘temporal proximity--while enough to support a prima
facie case--[is] insufficient to establish pretext.’”
Dall, 966
F. Supp. 2d at 195 (quoting Ben-Levy v. Bloomberg, L.P., 518 F.
App’x 17, 19 (2d Cir. 2013)).
The Court finds that a reasonable
jury could not find that D’Ambrosio would not have reported
Plaintiff’s
receipt
internal complaints.
that
Plaintiff
of
HEAP
benefits
had
Plaintiff
not
made
See Dall, 966 F. Supp. 2d at 196 (holding
failed
to
establish
pretext
regarding
his
retaliation claim and noting that the defendant “demonstrated that
Plaintiff was facing discipline in response to his own conduct,
not his sexual harassment complaint”).
4.
Section 75 Charges and Suspension
Plaintiff has failed to establish causation with respect
to Defendants filing Section 75 charges and suspending her without
pay.
Again, Plaintiff’s informal complaints were made in August
and September 2009 and her NYSDHR Complaint was filed in October
2009 and sent to Defendants in early November 2009.
(Pl.’s 56.1
Counterstmt. ¶¶ 5, 94; Pl.’s NYSDHR Complaint, Pl.’s Ex. I, Docket
Entry 47-6, at 25-29.)
While SIU met with Plaintiff in October
2009, Defendants did not file Section 75 charges against Plaintiff
until approximately one year later in October 2010.
Stmt. ¶¶ 13, 23.)
(Defs.’ 56.1
Plaintiff has not asserted that other HEAP unit
employees received HEAP benefits and were not reprimanded; indeed,
55
Plaintiff does not dispute that other HEAP unit employees were
investigated by SIU and a temporary employee, Camille Bolster, was
terminated because she “signed off” on her daughter’s HEAP benefits
application.
(Pl.’s
56.1
Counterstmt.
¶
17.)
Accordingly,
Plaintiff has failed to demonstrate that Defendants filed Section
75 charges against her in retaliation for her protected activities.
In
any
event,
Defendants
have
asserted
a
legitimate,
non-
discriminatory reason to the extent that they charged Plaintiff
following an investigation by SIU and these charges were upheld
both by an arbitrator and in a state court proceeding.
5.
Threat of Criminal Prosecution
The Court finds that Plaintiff has failed to establish
causation
with
respect
to
Defendants’
statement
that
the
Misconduct Charges would be forwarded to the District Attorney
unless Plaintiff resigned.
hearing being started.”
This statement was made “prior to the
(Pl.’s Dep. Tr. 531:18-25.)
Thus, the
earliest date that Defendants could have made that statement was
June 1, 2011, the first day of the Section 75 Hearing.
56.1 Stmt. ¶ 27.)
(Defs.’
However, even if the comment was made on June 1,
2011, that still results in an approximately two year gap between
Defendants’ statement and Plaintiff’s internal complaints and
NYSDHR
Complaint.
Additionally,
Plaintiff
has
not
made
any
allegations that even approach a showing of a causal connection
between the County’s statement and Plaintiff’s internal complaints
56
and/or NYSDHR Complaint.
See Richardson, 532 F.3d at 123 (at the
prima facie stage, Plaintiff is required to establish, inter alia,
“a causal connection between the protected activity and the adverse
employment
action.”)
(internal
quotation
marks
and
citation
omitted).
Accordingly, summary judgment is DENIED with respect to
Plaintiff’s
claim
that
withholding
documents,
Defendants
stripping
retaliated
her
against
her
responsibilities,
by
acting
hostile, assigning her an isolated cubicle, depriving her of a
multiline phone, providing her with a malfunctioning badge, and
failing to assign her work at the Smithtown Center.
The Court
GRANTS summary judgment with respect to Plaintiff’s claim that
Defendants
performance
retaliated
against
evaluation,
filing
her
the
by
issuing
Misconduct
a
negative
Charges
and
suspending her without pay, reporting her receipt of HEAP benefits,
and threatening to forward the Misconduct Charges to the District
Attorney if she did not resign.
IV.
Section 1983 Claims
A.
Nancy D’Ambrosio
To state a claim under Section 1983, the plaintiff must
demonstrate “the violation of a right secured by the Constitution
and laws of the United States, and . . . that the alleged
deprivation was committed by a person acting under color of state
law.”
Feingold, 366 F.3d at 159 (internal quotation marks and
57
citation omitted).
A prerequisite to an award of damages pursuant
to Section 1983 is a finding that the individual defendant was
personally involved in the deprivation of constitutional rights.
Id. However, once it is established that the defendant acted under
color
of
state
law,
the
plaintiff’s
Equal
Protection
claim
“parallels” her Title VII claim as “[t]he elements of one are
generally the same as the elements of the other and the two must
stand or fall together.”
Id. (citations omitted).
Defendants do not dispute that D’Ambrosio was acting
under color of state law or that she was personally involved in
the alleged constitutional deprivation.
As the Court has already
determined that Plaintiff has raised triable issues of fact with
respect to her Title VII discrimination and retaliation claims,
Plaintiff’s Section 1983 claim against D’Ambrosio will accordingly
“stand” with her Title VII claims.
Thus, the Court need only
determine the issue of qualified immunity.
A
individual
government
capacity
is
official
entitled
named
to
as
a
defendant
qualified
in
immunity
her
where:
(1) federal law does not prohibit the defendant’s conduct; or (2)
if the defendant’s conduct was prohibited, “the plaintiff’s right
not to be subjected to such conduct by the defendant was not
clearly
established
at
the
time
it
occurred”;
or
(3)
the
defendant’s conduct was objectively legally reasonable based on
the clearly established law at the time the actions were taken.
58
Manganiello v. City of N.Y., 612 F.3d 149, 164 (2d Cir. 2010)
(citations omitted).
Defendants argue that the “appropriate question” in
analyzing D’Ambrosio’s qualified immunity defense is “whether a
reasonable DSS supervisor, similarly situated to D’Ambrosio, was
on notice that bilingual HEAP employees, like Collazo, had a
clearly established constitutional right to conduct HEAP business,
during business hours on the work floor, in a language other than
English.”
(Defs.’ Br. at 18.)
The Court declines to adopt this
narrow view of the issues at hand.
only”
directive
is
one
While D’Ambrosio’s “English-
aspect
of
Plaintiff’s
alleged
constitutional deprivation, the true “appropriate question” is
whether Plaintiff had a clearly established right to be free from
discrimination and retaliation.10
It is apparent that Plaintiff
did, in fact, have such a clearly established right as “courts
have long recognized that the Equal Protection Clause protects
individuals from intentional discrimination under color of state
law on the basis of race, national origin, or religion.”
Sulehria
v. City of N.Y., 670 F. Supp. 2d 288, 323-24 (S.D.N.Y. 2009).
Plaintiff appears to allege that D’Ambrosio is not entitled to
qualified immunity regarding a hostile work environment claim.
(Pl.’s Br. at 21.) As Plaintiff has not alleged facts that
would establish a hostile work environment--or even alleged that
she is asserting a hostile work environment claim--it is not
necessary for the Court to address the issue of qualified
immunity with respect to that argument.
10
59
As set forth above, Plaintiff has raised triable issues
of fact as to whether Defendants discriminated and/or retaliated
against her in contravention of Title VII.
To the extent that
these
Plaintiff’s
disputes
of
fact
are
resolved
in
favor,
D’Ambrosio would not be entitled to the defense of qualified
immunity.
See, e.g. Zagaja v. Vill. of Freeport, 10-CV-3660, 2012
WL 5989657, at *21-22 (E.D.N.Y. Nov. 20, 2012) (Denying summary
judgment regarding the defendant’s qualified immunity defense
where the defendant would not be protected by qualified immunity
if the jury concluded that he “intentionally discriminated against
plaintiff and retaliated against her in violation of Section 1981,
Section 1983, and the NYSHRL in the manner described by the
plaintiff.”) (collecting cases).
Cf. Sulehria, 670 F. Supp. 2d at
323-24 (“[w]here the circumstances are in dispute, and contrasting
accounts present factual issues as to the [unconstitutionality of
the action], a defendant is not entitled to judgment as a matter
of law on a defense of qualified immunity”) (collecting cases)
(internal quotation marks omitted; alterations in original).
Accordingly, summary judgment on Plaintiff’s Section
1983 claim against D’Ambrosio is DENIED as the issues of fact
regarding Plaintiff’s discrimination and retaliation claims must
be determined before the Court decides the issue of qualified
immunity.
See Zagaja, 2012 WL 5989657, at *21.
60
B.
The County
A municipality will not be held liable pursuant to
Section
1983
on
a
employees’ torts.
theory
of
respondeat
superior
for
their
Bonds v. Suffolk Cty. Sheriff’s Dep’t, No. 05-
CV-3109, 2006 WL 3681206, at *2 (E.D.N.Y. Dec. 5, 2006).
See also
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691, 98 S. Ct. 2018,
56 L. Ed. 2d 611 (1978).
However, a municipality may be liable
under
actions
Section
1983
“for
taken
pursuant
municipal policy that cause constitutional torts.”
to
official
Brewster v.
Nassau Cty., 349 F. Supp. 2d 540, 549 (E.D.N.Y. 2004) (internal
quotation marks and citation omitted).
A plaintiff demonstrates
the existence of a municipal policy or custom by alleging, inter
alia,
that
the
municipal
policymakers’
failure
to
train
or
supervise their employees amounts to a deliberate indifference to
the
rights
employees.
of
individuals
who
interact
with
the
municipal
Bonds, 2006 WL 2681206, at *2.
To state a Section 1983 claim against a municipality
based on deliberate indifference the plaintiff must establish
“that a policymaking official was aware of constitutional injury,
or
the
risk
appropriate
of
constitutional
action
to
constitutional rights.”
81 (2d Cir. 2012).
prevent
injury,
or
but
sanction
failed
to
violations
take
of
Jones v. Town of East Haven, 691 F.3d 72,
See also Walker v. N.Y. City Dep’t of Corr.,
No. 01-CV-1116, 2008 WL 4974425, *19 (S.D.N.Y. 2008) (Noting that
61
deliberate indifference can be established where the municipal
defendant made no meaningful attempt to “take steps to foreclose
the[] recurrence” of complaints of constitutional violations.).
However, deliberate indifference involves a “stringent standard of
fault”
and
requires
evidence
that
the
municipal
official
consciously disregarded a “known or obvious” consequence; mere
negligence will not suffice.
Jones, 691 F.3d at 81 (internal
quotation marks and citation omitted).
While one incident of
misconduct that involves an employee below the policymaking level
generally will not suffice to establish a policy or custom, “a
single
instance
of
deliberate
indifference
to
subordinates’
actions” will suffice to expose the municipality to Section 1983
liability.
Greenaway v. Cty. of Nassau, 97 F. Supp. 3d 225, 237
(E.D.N.Y. 2015) (internal quotation marks and citation omitted).
Here, Plaintiff alleges that the County’s failure to
investigate her complaints to Commissioner Blass, Barnes, and
“various supervisors” and failure to discipline D’Ambrosio amounts
to deliberate indifference.
not
allege
that
any
(Pl.’s Br. at 17-18.)
investigation
was
taken
Defendants do
in
response
to
Plaintiff’s complaints but instead argue that Plaintiff did not
raise
a
Complaint
discrimination
and
that
complaint
D’Ambrosio’s
prior
to
directive
Spanish was a “legitimate business judgment.”
62
filing
to
the
cease
NYSDHR
speaking
(Defs.’ Reply at
8.)
The Court finds that Plaintiff has raised triable issues of
fact regarding a Section 1983 claim against the County.
As
set
forth
above
in
the
Court’s
discussion
of
Plaintiff’s retaliation claim, certain of Plaintiff’s internal
complaints to Knappe and her meeting with Commissioner Blass and
Barnes placed Defendants on notice that she was alleging racial
discrimination.
a
policymaker
complaints
However, Plaintiff has not alleged that Knappe is
or
was
that
ratified
Knappe’s
by
failure
to
her
Accordingly,
policymakers.
investigate
the
Plaintiff has not raised triable issues of fact with respect to
her complaints to Knappe.
However, as Commissioner of DSS, Commissioner Blass is
a policymaker for Section 1983 purposes.
See, e.g., Cmty. Health
Care Ass’n of N.Y. v. DeParle, 69 F. Supp. 2d 463, 475 (S.D.N.Y.
1999) (Holding that the Westchester County Department of Social
Services
Commissioner
“unquestionably
Section 1983 purposes.).
is
a
policymaker”
for
Thus, it is not necessary for the Court
to determine whether Barnes is a policymaker. As previously noted,
during her meeting with Commissioner Blass and Barnes, Plaintiff
complained
Hispanic
about
D’Ambrosio’s
employees
cease
directive
speaking
that
Spanish
in
she
and
other
the
workplace;
accordingly, D’Ambrosio’s alleged discriminatory practices were
“made manifestly clear to the policymaker.”
4974425, at *19.
Walker, 2008 WL
The Court concludes that Plaintiff has raised
63
triable issues of fact as to whether Commissioner Blass’ inaction
constituted
deliberate
indifference
constitutional deprivations.
to
Plaintiff’s
alleged
Accordingly, summary judgment is
DENIED with respect to Plaintiff’s Section 1983 claim regarding
the
County’s
deliberate
indifference
to
her
complaint
to
Commissioner Blass. To the extent that Plaintiff alleges a Section
1983 against the County based on its deliberate indifference to
her complaints to Knappe, summary judgment is GRANTED.
CONCLUSION
For the forgoing reasons, Defendants’ motion for summary
judgment is GRANTED IN PART and DENIED IN PART.
Summary judgment
on Plaintiff’s Title VII discrimination claim is DENIED with
respect
to
Plaintiff’s
responsibilities,
claim
isolated
that
from
being
her
stripped
co-workers,
and
of
her
having
information withheld constituted adverse actions that took place
under circumstances giving rise to an inference of discrimination.
The
Court
GRANTS
summary
judgment
on
Plaintiff’s
Title
VII
discrimination claim with respect to Plaintiff’s alleged adverse
employment actions of being prohibited from speaking Spanish,
assigned
a
disproportionate
amount
of
work,
involuntarily
transferred, suspended without pay, and constructively discharged.
Summary judgment on Plaintiff’s Title VII retaliation
claim is DENIED with respect to Plaintiff’s claim that Defendants
retaliated against her by withholding documents, stripping her of
64
her responsibilities, acting hostile, assigning her an isolated
cubicle, depriving her of a multiline phone, providing her with a
malfunctioning badge, and failing to assign her work at the
Smithtown Center. The Court GRANTS summary judgment on Plaintiff’s
Title VII retaliation claim with respect to Plaintiff’s claim that
Defendants
performance
retaliated
evaluation,
against
her
filing
the
by
issuing
Misconduct
a
negative
Charges
and
suspending her without pay, reporting her receipt of HEAP benefits,
and threatening to forward the Misconduct Charges to the District
Attorney if she did not resign.
The Court DENIES summary judgment on Plaintiff’s Section
1983 claim against D’Ambrosio.
The Court DENIES summary judgment
on Plaintiff’s Section 1983 claim against the County regarding the
County’s
deliberate
indifferent
to
Plaintiff’s
complaint
to
Commissioner Blass and GRANTS summary judgment on Plaintiff’s
Section 1983 claim of the County’s deliberate indifference to her
complaint to Knappe.
SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:
February
17 , 2016
Central Islip, New York
65
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