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

Filing 32

ORDER granting 18 Motion for Summary Judgment. For the reasons set forth herein, the Court grants defendants' motion for summary judgment in its entirety with respect to the federal claims. The Court declines to exercise supplemental jurisdiction over the state law claims and thus dismisses those claims without prejudice. The Clerk of the Court shall enter judgment accordingly and close this case. SO ORDERED. Ordered by Judge Joseph F. Bianco on 7/29/2014. (Gibaldi, Michael)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 13-CV-243 (JFB) (WDW)

_____________________

ANN MARIE KRACHENFELS,
Plaintiff,
VERSUS

NORTH SHORE LONG ISLAND JEWISH HEALTH SYSTEM
AND NORTH SHORE UNIVERSITY HOSPITAL,
Defendants.
___________________
MEMORANDUM AND ORDER
July 29, 2014
___________________

JOSEPH F. BIANCO, District Judge:

request, denied a transfer to a different part
of the Health System even though a younger
nurse was granted such a transfer, and was
constructively discharged.

Plaintiff Ann Marie Krachenfels
(“Krachenfels” or “plaintiff”) commenced
this action against North Shore Long Island
Jewish Health System (the “Health System”)
and North Shore University Hospital (the
“Hospital”) (collectively, “defendants”) on
January 15, 2013, alleging disability
discrimination in violation of the Americans
with Disabilities Act, 42 U.S.C. §§ 12101 et
seq. (“ADA”), and the New York State
Human Rights Law, N.Y. Exec. Law §§ 290
et seq. (“NYSHRL”), and age discrimination
in violation of the Age Discrimination in
Employment Act, 29 U.S.C. §§ 621 et seq.
(“ADEA”), and the NYSHRL. A former
operating room nurse at the Hospital,
plaintiff claims that she was denied a
reasonable accommodation for her hand
condition (discoid dermatitis), subjected to a
hostile work environment because of her
discoid dermatitis and her accommodation

Defendants move for summary judgment
pursuant to Federal Rule of Civil Procedure
56. For the reasons set forth herein, the
Court grants the motion as to all the federal
claims. First, plaintiff’s failure to
accommodate and hostile work environment
claims are time-barred because they accrued
more than 300 days before plaintiff filed a
charge of discrimination with the Equal
Employment
Opportunity
Council
(“EEOC”).
Plaintiff’s
failure
to
accommodate claim accrued on July 13,
2010, and plaintiff’s reliance on the
continuing violation doctrine to support the
timeliness of this claim is unavailing; the
failure to accommodate is a discrete act, not
a continuing violation. Plaintiff’s hostile
work environment claims are also untimely

1

because plaintiff left work more than 300
days before filing her claim with the EEOC;
thus, the last act contributing to the allegedly
hostile work environment could not have
occurred within the applicable limitations
period. Although plaintiff claims that she
was denied the ability to transfer to a
different position while on leave and within
the limitations period, this has no bearing on
plaintiff’s hostile work environment claim,
which requires evidence of harassment in
the “workplace.” Second, even assuming
that plaintiff’s failure to accommodate claim
were timely, the Court concludes that it fails
as a matter of law because there is no
evidence that plaintiff was disabled within
the meaning of the ADA. Third, plaintiff has
failed to raise a triable issue of fact as to
whether she was constructively discharged.
Even resolving all factual disputes in favor
of plaintiff and viewing the evidence in the
light most favorable to her, a reasonable jury
could not find that plaintiff’s treatment in
the workplace was objectively intolerable,
that defendants deliberately created such an
environment, or that any behavior about
which plaintiff complains occurred in
circumstances giving rise to an inference of
discrimination. Fourth, plaintiff’s retaliation
claim fails as a matter of law because
defendants’ failure to transfer her—the only
action taken by defendants that falls within
the applicable limitations period—does not
constitute an adverse employment action in
this case. Specifically, plaintiff has proffered
no evidence concerning the positions that
she sought, and it is therefore impossible to
determine whether the failure to transfer
well might have dissuaded a reasonable
worker from making or supporting a charge
of discrimination. Moreover, even if
plaintiff could establish a prima facie
retaliation claim, defendants have proffered
uncontroverted evidence that plaintiff did
not secure a transfer because she applied to
positions for which she was not qualified,

did not return calls for interviews, and did
not conduct herself professionally in
interviews. This evidence shifts the burden
to plaintiff to establish that retaliation was a
motivating factor in defendants’ decision not
to transfer her, and in this case, there is no
such evidence. Fifth, plaintiff’s age
discrimination claim, which is also premised
on defendants’ failure to transfer her, also
fails because plaintiff cannot show that she
was denied a transfer to a materially more
advantageous
position.
Additionally,
plaintiff has not created a triable issue of
fact as to an inference of age discrimination.
Plaintiff relies solely on the fact that another
nurse ten to fifteen years younger than she
received a transfer; however, plaintiff offers
no evidence about the other nurse’s
qualifications, the assignment that the other
nurse received, or whether plaintiff had
applied for that position and was qualified
for it. In sum, the Court grants summary
judgment for defendants on all of plaintiff’s
federal claims. Because the Court grants
summary judgment to defendants on all
federal claims, the Court declines to exercise
supplemental jurisdiction over the state law
discrimination claims.
I. BACKGROUND
A. Facts
The following facts are taken from the
parties’ depositions, declarations, exhibits,
and respective Local Rule 56.1 statements of
facts. Upon consideration of a motion for
summary judgment, the Court construes the
facts in the light most favorable to the
nonmoving party. See, e.g., Capobianco v.
City of New York, 422 F.3d 47, 50 n.1 (2d
Cir. 2005). Unless otherwise noted, where a
party’s Rule 56.1 statement is cited, that fact
is undisputed, or the opposing party has not

2

“circulating” duties while the other
performed “scrubbing” duties. (Id. ¶ 28.) If a
Surgical Tech were present instead of a
second nurse, then the nurse would circulate
and the Surgical Tech would scrub. (Id.
¶ 29.) Circulating duties entailed, inter alia,
ensuring the safe transfer of the patient to
the operating room, providing assistance to
anesthesia personnel, performing skin
preparation, documenting the plan of care,
assessing needs of the medical team, and
handling all specimens. (Id. ¶ 25.) Scrubbing
duties entailed, inter alia, checking all
instruments and assisting the surgeon during
the operation by handling those instruments.
(Id. ¶ 26.) The scrubbing nurse (or Surgical
Tech) worked closely beside the surgeons
and often came into physical contact with
the patient and the surgical site. (Id.)
Accordingly, although all nurses and
Surgical Techs in the operating room would
wash their hands and put on gloves before
every operation, the person performing the
scrubbing duties also had to be completely
sterile throughout the operation. (Id. ¶ 30–
31; Pl.’s 56.1 ¶¶ 30.1–31.2; see also
Krachenfels Dep. at 100 (“The scrub is
sterile and the circulator is not.”).)

pointed to any evidence in the record to
contradict it.1
1. The Parties
The Health System is a regional nonprofit healthcare network of member
hospitals, progressive care centers, longterm care facilities, and home health
agencies. (Defs.’ 56.1 ¶ 1.) The Hospital is a
member hospital located in Manhasset, New
York. (Id.)
Plaintiff began working for the Hospital
as a Registered Nurse (“RN”) in 1983. (Id.
¶ 6.) Around 1996, she was assigned to
work part-time in the operating rooms of the
Hospital’s Cardiac Surgery Unit (“CSU”).
(Id. ¶ 7.) As such, she was designated a
“Perioperative RN-OR.” (Id. ¶¶ 5, 7.)
Plaintiff held that position until February 9,
2011, after which she took a leave of
absence. (Id. ¶ 9; Pl.’s 56.1 ¶ 9.1.) She
formally resigned from her position on
August 2, 2011. (Defs.’ 56.1 ¶ 84.)
2. Duties of a Perioperative RN-OR
During weekday business hours, each
operating room in the Hospital had either
two nurses or one nurse and one Surgical
Technologist (“Surgical Tech”). (Id. ¶ 27.) If
two nurses were present, then one performed

Each specialty area in the Hospital, such
as the CSU, had its own on-call procedures
and staffing requirements to ensure the
availability of qualified staff outside
weekday business hours. (Defs.’ 56.1 ¶¶ 32–
33, 35.) On-call shifts for the CSU ran from
7:00 p.m. to 11:00 p.m. and 11:00 p.m. to
7:00 a.m. on Monday through Friday, and
forty-eight hours straight on Saturday and
Sunday. (Id. ¶ 34.) Either two CSU nurses or
a CSU nurse and a Surgical Tech were
assigned to an on-call shift. 2 An on-call

Although the parties’ respective Rule 56.1
statements of facts contain specific citations to the
record, the Court cites to the Rule 56.1 statement
instead of the underlying citation to the record.
However, the Court disregards all assertions in the
Rule 56.1 statements that are unsupported by the
record, relying only on the admissible evidence in the
record. See Holtz v. Rockefeller & Co., Inc., 258 F.3d
62, 73 (2d Cir. 2001) (noting that district court may
disregard an assertion in a Rule 56.1 statement that is
unsupported by record). The Court denies
defendants’ motion to strike plaintiff’s Rule 56.1
Counterstatement of Facts, as there is no basis to do
so.
1

Debi Solivan (“Solivan”), HR Manager for the
Hospital from 2005 to 2013, avers that two CSU
nurses were always designated to take on-call
assignments. (Solivan Aff. ¶ 16.) According to
2

3

3. Plaintiff’s Tenure in the CSU

nurse needed to be able to perform both
circulating and scrubbing duties. (Id. ¶ 36;
see also Cifu Dep. at 55 (“If you are on call,
the expectation is that you can circulate and
scrub.”); Moleski Dep. at 41 (“Being on call,
there is only two staff members on call, and
they have to be able to scrub and
circulate.”).) This requirement was reflected
in the Policy and Procedure Manual, which
stated that any nurse “taking call must be
able to scrub and circulate within their
assigned specialty . . . in order to maintain a
safe patient environment.” (Solivan Aff. Ex.
E, Manual, at 1.) The Policy and Procedure
Manual went into effect in 1990 (Solivan
Aff. ¶ 15), and the version in the record was
last revised in November 2009 (see Solivan
Aff. Ex. E, Manual, at 2). The Hospital
required on-call nurses to be able to scrub
and circulate in order to ensure patient
safety. (Defs.’ 56.1 ¶ 37.) Given that the
Hospital was not fully staffed during on-call
hours, an on-call nurse could have been the
only nurse present during an operation, in
which case she would have to scrub. Even if
the two on-call nurses were present in the
operating room, the circulating nurse needed
to be able to scrub in case the scrubbing
nurse became incapacitated. 3 (Solivan Aff.
¶ 18; Moleski Dep. at 40–45, 67.)

Plaintiff worked as a Perioperative RNOR in the CSU from 1996 to February 9,
2011. (Defs.’ 56.1 ¶¶ 5, 7, 9.) When she
worked part-time from 1996 through July
2010, she supplemented her income by
working on-call shifts, for which she earned
twelve dollars per hour if she was not called
in, and time and a half her regular salary if
she was called in. (Krachenfels Dep. at 114–
16.) She worked on-call “all the time” in
2008, but she could not remember specific
occasions. (Id. at 116–17.)
a. Plaintiff’s Hand Condition and
Her Requests to Avoid Scrubbing
Plaintiff experienced irritation of some
kind on her hands in 2008 (Krachenfels Dep.
at 169–72), and she first noticed open
blisters and widespread rashes on her hands
in 2009 (Defs.’ 56.1 ¶ 101; Krachenfels
Dep. at 136–38, 145–46, 150–51). No doctor
ever discovered the cause of the rashes; her
doctor diagnosed her with “discoid
dermatitis,” which, according to plaintiff, is
a “catch-all for when they don’t know what
to call it.” (Defs.’ 56.1 ¶¶ 102–04.)
Whenever her condition “flare[d] up” and
blisters were present, she testified that
showering became very painful and that she
slept “[v]ery poorly” because the itching
was “maddening.” (Krachenfels Dep. at
151–52.) During this time, plaintiff scrubbed
“from time to time”—when she “felt

Patricia Moleski (“Moleski”), supervisor of the
operating room, a Surgical Tech could have been oncall instead of a nurse, but nurses took on-call
assignments more frequently than Surgical Techs.
(Moleski Dep. at 42–43, 46.)
3
Citing Moleski’s deposition testimony, plaintiff
claims that the CSU operating room was fully staffed
twenty-four hours per day and that the Hospital
employed a “pyramid system” to ensure
understaffing. (See Pl.’s 56.1 ¶¶ 38–39.) The
implication is that a nurse could have been on-call
even if she could not scrub. Moleski’s testimony does
not support this assertion. When asked whether the
CSU operating room was staffed twenty-four hours
per day, Moleski responded, “With scheduled staff
and then call staff.” (Moleski Dep. at 66.) She

clarified that only two nurses were available during
on-call hours (id. at 41–42), which is consistent with
Solivan’s affidavit (see Solivan Aff. ¶¶ 16–18).
Moreover, Moleski testified that “in an extreme
emergency” when the two on-call nurses (or Surgical
Techs) needed backup, the CSU would call in
additional staff according to a pyramid system.
(Moleski Dep. at 46–47.) That testimony in no way
contradicts the evidence that all on-call nurses had to
be able to scrub given the minimal staffing during oncall hours.

4

good”—although she stressed in her
deposition that scrubbing was not required.4
(Krachenfels Dep. at 163, 165.) She did not
scrub because other nurses “loved to scrub,”
so she would let them do it. (Id. at 154–55.)
On two occasions, her doctors provided her
with notes indicating that she should not
scrub for several weeks. (Id.; see also
Morelli Decl. Exs. I & J.) She provided
those notes to the Hospital, which
temporarily excused her from her scrubbing
duties. (Krachenfels Dep. at 169–72; see
also Moleski Dep. at 26 (“Throughout many
several years, there were issues where she
had asked not to scrub because of her
condition. So, at any time that she came to
us, we would accommodate her.”).)

scrubbing for the OR when open lesions are
present.” (Id. ¶ 45; Solivan Aff. Ex. G,
Doctor’s Note.) Plaintiff explained that she
gave the note to the Hospital “because they
were now making it mandatory to scrub.”
(Krachenfels Dep. at 155.)
The Hospital’s Perioperative Department
referred plaintiff’s request to Solivan, the
Human Resources Manager responsible for
employees in that department. (Defs.’ 56.1
¶ 47.) Solivan then referred the request to
Employee Health Services (“EHS”), which
reviewed requested accommodations from
Hospital staff. (Id. ¶ 48.) On July 8, 2010,
EHS informed Solivan that plaintiff had
seen a specialist, who determined that
plaintiff did not have a disability requiring
her to be relieved of scrubbing, but that if
she had open wounds, she needed to keep
them covered while scrubbing. (Id. ¶ 50.)
However, the Hospital’s policy and practice
prevented nurses from scrubbing if they had
an open wound or lesion. (Id. ¶ 51.)
Accordingly, on July 13, 2010, Moleski
informed plaintiff that she would not have to
scrub if she had lesions on her hands, but
that she could no longer sign up for on-call
shifts because an on-call nurse must be able
to scrub. (Id. ¶ 52; see Moleski Dep. at 40.)

Sometime in 2009, two nurses
complained to management that certain
nurses were not scrubbing. (Krachenfels
Dep. at 155–56; Moleski Dep. at 47–48.) In
response, Moleski told plaintiff and two
other nurses, Ruth Adabody and Carol Ann
Peralta (“Peralta”), that they had to scrub
and circulate. (Krachenfels Dep. at 175.)
In January 2010, plaintiff informed the
Hospital that she had a rash on her hands
and requested that she be relieved from
performing scrubbing duties whenever she
had open lesions or blisters. (Defs.’ 56.1
¶¶ 43–44.) In support of this request,
plaintiff gave the Hospital a doctor’s note
dated January 21, 2010, from Dr. Louise
Kaufmann, which informed the Hospital that
plaintiff was “being followed for her hands,”
and stated that plaintiff “should avoid

Because plaintiff was a part-time
employee and could no longer sign up for
on-call shifts, the Hospital offered plaintiff a
full-time position. (Defs.’ 56.1 ¶ 53.) The
Hospital was able to exempt plaintiff from
scrubbing if she worked full-time during
normal business hours, when many other
nurses are working. (Id. ¶ 54.) If plaintiff
had lesions on her hand on a certain day and
therefore could not scrub, one of the other
nurses could perform that responsibility
instead. (Id. ¶ 55.) Plaintiff testified that she
accepted the position because she had no
other choice. (Pl.’s 56.1 ¶ 53.1.) She
realized that the Hospital was offering her a
full-time position in an effort to make up

4

Defendants dispute this fact. Solivan, Moleski, and
Kelly Cifu-Tursellino (“Cifu”), director of the
operating room as of 2010, claim that both circulating
and scrubbing were always essential duties of a
Perioperative RN-OR. (Solivan Aff. ¶ 12; Moleski
Dep. at 40, 52, 55; Cifu Dep. at 49.) However, the
Court assumes plaintiff’s version of events for
purposes of the present motion.

5

lost income from her inability to work oncall shifts (Krachenfels Dep. at 197), but the
move from part-time to full-time
nonetheless resulted in a “substantial loss”
to her income given her inability to take oncall shifts (id. at 191).5 Moreover, working
full-time during the day forced plaintiff to
“rearrange [her] entire schedule.” (Id. at
195.)

way. (Krachenfels Dep. at 240, 249–50,
252.)
In a separate incident during an
operation on March 20, 2009, plaintiff
refused to give instruments to the surgeon
until he changed his gloves. The surgeon,
Dr. Glassman, “shoved past” plaintiff,
telling her to “get the fuck out of [his] way,”
and took the instruments himself. (Defs.’
56.1 ¶ 61; Krachenfels Dep. at 211–13.)
After that incident, plaintiff was told to
report to a different operating room. (Id. at
215–16.) Instead, she went to the
Emergency Room because she was so upset
from the incident, and the Emergency Room
sent her home. (Id. at 216.) Although
disciplinary action was commenced against
plaintiff for abandoning her post, the
discipline was ultimately reduced from a
written warning to a verbal warning. (Id. at
219; Moleski Dep. at 73, 75.)

On September 8, 2010, plaintiff
informed Solivan that she thought scrubbing
was causing her lesions, and that she wanted
to be exempt from scrubbing all the time.6
(Defs.’ 56.1 ¶¶ 56–57.) In plaintiff’s
deposition, she explained that she did not
want to scrub because of her discoid
dermatitis. (Krachenfels Dep. at 201 (“Q:
Okay. And because of your condition, can
you scrub? A: I don’t want to scrub.”).) The
Hospital granted plaintiff’s request and
completely exempted plaintiff from
scrubbing duties. (Defs.’ 56.1 ¶ 58.)

A different surgeon reported that he had
experienced difficulties with plaintiff in the
operating room on October 6, 2009, and that
plaintiff’s behavior was a recurring problem.
(Defs.’ 56.1 ¶ 64.) He requested that
plaintiff no longer be assigned to his
operating room. (Id.)

b. Incidents of Alleged Harassment
Plaintiff testified to several conflicts
with her coworkers that occurred during the
last few years of her tenure at the Hospital.
On March 3, 2009, a relief nurse yelled at
plaintiff for not counting four clamps in the
operating room. (Id. ¶ 60; Pl.’s 56.1 ¶¶ 60.1–
60.5.) According to plaintiff, the nurse
resented her because she had been excused
from scrubbing at that time, although
plaintiff could not explain why she felt that

Plaintiff claims that the attitudes of her
co-workers changed noticeably after she
received her exemption from scrubbing in
2010. (Krachenfels Dep. at 249.) At her
deposition, she referred to “badgering” that
“became worse and worse on a daily basis.”
(Id. at 189.) She was “assuming” it was due
to her inability to scrub. (Id.) One of her
fellow nurses had told her explicitly that she
did only fifty percent of her job.
(Krachenfels Dep. at 253.) However,
plaintiff could not articulate a reason for
believing that others shared this sentiment.
(See id. at 249 (“Q: Okay. You are claiming
that you got an accommodation, and the
attitude of these co-workers of yours

Plaintiff’s counsel claims that plaintiff lost
approximately $30,000 of additional income, but he
supports that fact only with allegations in the
complaint. (See Pl.’s 56.1 ¶¶ 98.1, 99.2.)
6
Plaintiff disputes this fact, relying on her deposition
testimony that she would scrub when she “felt good.”
(Krachenfels Dep. at 166.) However, this testimony
clearly related to 2009, not September 2010.
Accordingly, it does not contradict the clear evidence
that plaintiff requested not to scrub in September
2010. (See Solivan Aff. ¶ 24 & Ex. E.)
5

6

changed, correct? A: Uh-huh, yes. Q: And
I’m asking you, what evidence do you have
that suggests that those two things are
linked? A: You would have to be there to
understand it.”).)

Hospital before her shift ended and did not
return that day (id. ¶¶ 71–72). Plaintiff
claims that she left because she felt sick to
her stomach. (See Pl.’s 56.1 ¶¶ 71.2, 72.1.)
Just before leaving the Hospital, plaintiff
spoke to Deirdre Duke (“Duke”) in Human
Resources. (Krachenfels Dep. at 324–25.)
According to plaintiff, she told Duke that
she could no longer tolerate working in the
CSU operating room. (Id. at 325–26.) Duke
assured her that the Health System would
find her another position and referred her to
Roseanne Verticchio (“Verticchio”), a nurse
recruiter, to look for different job. (Id. at
326–27.)

On April 9, 2010, plaintiff failed to
report to an operating room as directed, and
she received a “verbal counseling” for
insubordination. (Defs.’ 56.1 ¶ 66; see
Morelli Decl. Ex. H, Verbal Conference.)
Plaintiff indicated that she felt harassed.
(Defs.’ 56.1 ¶ 67; Pl.’s 56.1 ¶ 67.)
Plaintiff also testified that Cifu, who
became director of the operating room in
2010,
“harassed
[her]
constantly”
(Krachenfels Dep. at 257–58), although she
really did not know why (id. at 266–67). At
some point in January 2011, she claims that
Cifu put her on probation as the result of an
incident plaintiff had with a surgeon (id. at
259–62), although probation was reserved
only for orientation (Moleski Dep. at 57).

Sometime shortly thereafter, plaintiff
spoke with Solivan about the February 9,
2011 incident. (Defs.’ 56.1 ¶ 75; Pl.’s 56.1
¶ 75.) During this conversation, plaintiff
requested a transfer to another position.
(Defs.’ 56.1 ¶ 77.) Solivan suggested that
plaintiff take a leave of absence until she
secured a new position, which plaintiff did.
(Krachenfels Dep. at 339.) According to
Solivan, Hospital supervisors decided not to
place plaintiff in active performance
counseling, which would have prevented
plaintiff from transferring to a new position
for twelve weeks. (Solivan Aff. ¶ 32.)

By February 9, 2011, Solivan claims that
only three out of the seven surgeons in the
CSU would work with plaintiff. (Solivan
¶ 31.) Cifu knew of one surgeon who did not
want to work with plaintiff. (Cifu Dep. at
74.) On that date, plaintiff asked Cifu to
change shifts, and Cifu pulled her aside and,
according to plaintiff, yelled with her finger
in plaintiff’s face. (Krachenfels Dep. at 277–
78.) Plaintiff also had one last dispute with a
surgeon in the operating room on that day.
(Defs.’ 56.1 ¶ 69.) In the operating room,
plaintiff noticed a contaminant in the prep
kit used to prepare patients for surgery, and
the surgeon became “really really angry . . .
picked up the prep kit, and he threw it into
the garbage and said fix it.” (Krachenfels
Dep. at 260). As a result of this incident,
another nurse was sent to relieve plaintiff of
her duties. (Defs.’ 56.1 ¶ 70.) Plaintiff was
told to collect herself and return to the
operating room (id.); however, she left the

4. Leave of Absence
After the events of February 9, 2011,
plaintiff looked for a new job within the
Health System. According to plaintiff,
Verticchio immediately referred her to her
assistant, who was unhelpful, and Solivan
suggested that she look outside the Health
System altogether. (Krachenfels Dep. at
329–30, 340.) After a few months during
which plaintiff claims she had to help
herself, Verticchio informed plaintiff that
there were four open positions to work the
twelve-hour night shift on the “med/surg”
floors. (Id. at 332.) Plaintiff felt the Hospital

7

“[p]eople”—referring to surgeons—“like to
scrub with young girls,” though she
admitted that she was “generalizing.” (Id. at
295.) Plaintiff never heard anyone make a
comment about her age. (Id. at 296.)

was discriminating against her because those
positions were only entry level. (Id.)
According to Solivan, however, plaintiff’s
years of experience as an operating room
nurse did not necessarily qualify her for
other nursing positions. (Solivan Aff. ¶ 33
n.1.) Plaintiff conceded that a CSU
Perioperative RN-OR would not necessarily
be interchangeable with another type of
nurse. (Krachenfels Dep. at 342.)

7. EEOC Filing
Plaintiff filed a charge of discrimination
with the EEOC on January 3, 2012. (Klein
Aff. Ex. A, EEOC Charge.) The EEOC
issued plaintiff a Notice of Right to Sue on
October 18, 2012. (Compl. Ex. A.)

Solivan claims that plaintiff’s job in the
CSU operating room remained available to
plaintiff throughout this time. (Solivan Aff.
¶ 40.) However, plaintiff testified that she
had “no idea” whether her job remained
open to her. (Krachenfels Dep. at 34.)

B. Procedural History
Plaintiff commenced this action on
January 15, 2013. Following discovery by
the parties, defendants moved for summary
judgment on March 6, 2014. Plaintiff filed
her opposition to the motion on April 21,
2014, and defendants filed their reply on
May 5, 2014. The Court heard oral argument
on the motion on June 5, 2014. Thereafter,
the Court directed the parties to submit
supplemental letters addressing several
factual issues raised at the oral argument.
Plaintiff submitted her letter on June 6,
2014, and defendants submitted their letter
on June 13, 2014. The Court has fully
considered the submissions of the parties.

5. Resignation
As it turned out, February 9, 2011, was
plaintiff’s last day of work. (Defs.’ 56.1 ¶ 9;
Krachenfels Dep. at 324.) By letter dated
August 2, 2011, plaintiff resigned. (Defs.’
56.1 ¶ 84.) In her deposition, she explained
that she grew “tired of the runaround.”
(Krachenfels Dep. at 345–46.)
6. Evidence of Age Discrimination
Plaintiff claims that Peralta, another
nurse who could not scrub, was transferred
to a different position in the Health System.
(Id. at 190.) Peralta was between forty and
forty-five years old at the time; plaintiff was
fifty-five in February 2011. (Id. at 190, 296).
When asked at her deposition whether she
had evidence of age discrimination, plaintiff
insisted, “She is younger than me. That’s the
evidence.” (Id. at 193.) When pressed for
anything else, plaintiff had “nothing to say.”
(Id. at 193–94 (“Q: Okay. What leads you to
conclude that her age came into
consideration when they gave her that job?
A: I have nothing to say. Q: You don’t have
any evidence to support that? A: I just have
nothing to say.”).) Plaintiff did testify that

II. STANDARD OF REVIEW
The standard for summary judgment is
well settled. Pursuant to Federal Rule of
Civil Procedure 56(a), a court may grant a
motion for summary judgment only if “the
movant shows that there is no genuine
dispute as to any material fact and the
movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a); Gonzalez v. City
of Schenectady, 728 F.3d 149, 154 (2d Cir.
2013). The moving party bears the burden of
showing that he is entitled to summary
judgment. See Huminski v. Corsones, 396
F.3d 53, 69 (2d Cir. 2005). “A party

8

asserting that a fact cannot be or is
genuinely disputed must support the
assertion by: (A) citing to particular parts of
materials in the record, including
depositions,
documents,
electronically
stored
information,
affidavits
or
declarations, stipulations (including those
made for purposes of the motion only),
admissions, interrogatory answers, or other
materials; or (B) showing that the materials
cited do not establish the absence or
presence of a genuine dispute, or that an
adverse party cannot produce admissible
evidence to support the fact.” Fed. R. Civ. P.
56(c)(1). The court “‘is not to weigh the
evidence but is instead required to view the
evidence in the light most favorable to the
party opposing summary judgment, to draw
all reasonable inferences in favor of that
party,
and
to
eschew
credibility
assessments.’” Amnesty Am. v. Town of W.
Hartford, 361 F.3d 113, 122 (2d Cir. 2004)
(quoting Weyant v. Okst, 101 F.3d 845, 854
(2d Cir. 1996)); see Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)
(summary judgment is unwarranted if “the
evidence is such that a reasonable jury could
return a verdict for the nonmoving party”).

parties alone will not defeat an otherwise
properly supported motion for summary
judgment.” Id. at 247–48 (emphasis in
original). Thus, the nonmoving party may
not rest upon mere conclusory allegations or
denials but must set forth “‘concrete
particulars’” showing that a trial is needed.
R.G. Grp., Inc. v. Horn & Hardart Co., 751
F.2d 69, 77 (2d Cir. 1984) (quoting SEC v.
Research Automation Corp., 585 F.2d 31, 33
(2d Cir. 1978)). Accordingly, it is
insufficient for a party opposing summary
judgment “‘merely to assert a conclusion
without supplying supporting arguments or
facts.’” BellSouth Telecomms., Inc. v. W.R.
Grace & Co., 77 F.3d 603, 615 (2d Cir.
1996) (quoting Research Automation Corp.,
585 F.2d at 33).
III. DISCUSSION
A. ADA Claims
The ADA provides that “[n]o covered
entity shall discriminate against a qualified
individual on the basis of disability in regard
to job application procedures, the hiring,
advancement, or discharge of employees,
employee compensation, job training, and
other terms, conditions, and privileges of
employment.” 42 U.S.C. § 12112(a). In the
instant case, plaintiff brings four claims
under the ADA: (1) failure to accommodate;
(2) hostile work environment; (3)
constructive discharge; and (4) retaliation.
For the reasons set forth infra, the Court
grants summary judgment for defendants as
to these claims.

Once the moving party has met its
burden, the opposing party “‘must do more
than simply show that there is some
metaphysical doubt as to the material
facts . . . . [T]he nonmoving party must
come forward with specific facts showing
that there is a genuine issue for trial.’”
Caldarola v. Calabrese, 298 F.3d 156, 160
(2d Cir. 2002) (alteration and emphasis in
original) (quoting Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574,
586–87 (1986)). As the Supreme Court
stated in Anderson, “[i]f the evidence is
merely colorable, or is not significantly
probative, summary judgment may be
granted.” 477 U.S. at 249–50 (citations
omitted). Indeed, “the mere existence of
some alleged factual dispute between the

1. Statute of Limitations
Defendants argue first that plaintiff’s
ADA claims are time-barred. The Court
concludes that the failure to accommodate
and hostile work environment claims are
indeed time-barred, and summary judgment
for defendants is warranted as to these

9

claims. However, the Court also concludes
that the constructive discharge and
retaliatory failure to transfer claims were
timely filed.

b. Application
Plaintiff
filed
her
charge
of
discrimination with the EEOC on January 3,
2012. (See Klein Aff. Ex. A, EEOC Charge.)
Accordingly, claims based upon unlawful
employment practices that occurred before
March 9, 2011, are time-barred. See, e.g.,
Elmenayer, 318 F.3d at 134. The Court
proceeds to consider when each of plaintiff’s
claims accrued.

a. Legal Standard
Under 42 U.S.C. § 2000e-5(e)(1), which
is incorporated by reference into the ADA
by 42 U.S.C. § 12117(a), a plaintiff in New
York has 300 days “after the alleged
unlawful employment practice occurred” to
file a charge of discrimination with the
EEOC. See, e.g., Elmenayer v. ABF Freight
Sys., Inc., 318 F.3d 130, 133–34 (2d Cir.
2003); Harris v. City of New York, 186 F.3d
243, 247–48 (2d Cir. 1999). To determine
whether a claim was timely filed with the
EEOC, the incidents of employment
discrimination or retaliation “must be
categorized as either discrete acts or
continuing violations.” Alers v. N.Y.C.
Human Res. Admin., No. 06-CV-6131 (SLT)
(LB), 2008 WL 4415246, at *5 (E.D.N.Y.
Sept. 24, 2008) (citing Nat’l R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 114–16
(2002)), aff’d, 357 F. App’x 330 (2d Cir.
2009). A claim based upon a discrete act of
discrimination or retaliation, “such as
termination, failure to promote, denial of
transfer, or refusal to hire,” is time-barred if
the discrete act occurred before the 300-day
time period. Morgan, 536 U.S. at 113; see,
e.g., Colvin v. State Univ. Coll. at
Farmingdale, No. 13-CV-3595 (SJF)
(ARL), 2014 WL 2863224, at *17
(E.D.N.Y. June 19, 2014). This holds true
“even when [a discrete act is] related to acts
alleged in timely filed charges.” Morgan,
536 U.S. at 113. By contrast, a claim based
upon discrimination or retaliation occurring
“over a series of days or perhaps years,”
such as a hostile work environment, is
timely if even one contributing act occurred
within the 300-day time period. Id. at 116–
18; see, e.g., Elmenayer, 318 F.3d at 134.

i. Failure to Accommodate
The parties agree that plaintiff’s failure
to accommodate claim is based upon the
July 13, 2010 denial of plaintiff’s request to
work on-call without scrubbing (see Defs.’
Mem. at 10; Pl.’s Opp’n at 6), and the
evidence in the summary judgment record
supports their understanding. In particular,
on July 13, 2010, the Hospital denied
plaintiff’s request to work part-time and oncall without scrubbing; the Hospital excused
her from scrubbing whenever she had
lesions on her hands but denied her the
ability to take on-call shifts. This
determination clearly occurred more than
300 days before plaintiff filed her EEOC
charge. Nevertheless, in an effort to salvage
this claim, plaintiff argues that defendants
subjected her to a hostile work environment
after denying her requested accommodation,
and that defendants’ actions thereby
constituted a continuing violation extending
into the 300 day period preceding the filing
of her EEOC charge. (Pl.’s Opp’n at 6–7.)
Plaintiff’s argument misses the mark. In
Elmenayer, the Second Circuit held that an
employer’s rejection of a proposed
accommodation “is the sort of ‘discrete act’
that must be the subject of a complaint to the
EEOC within 300 days,” even if “the effect
of the employer’s rejection continues to be
felt by the employee for as long as he
remains employed.” 318 F.3d at 135

10

(emphasis in original). Accordingly,
numerous district courts have recognized
that a failure to accommodate claim is not a
continuing violation, and this Court reaches
the same conclusion. See, e.g., Graham v.
Women in Need, Inc., No. 13-CV-07063
(LGS), 2014 WL 2440849, at *3 (S.D.N.Y.
May 30, 2014) (“The Second Circuit has
concluded that the rejection of a request to
accommodate is a ‘discrete act’ with its own
statute of limitations of 300 days for filing a
complaint before the EEOC.”); Ugactz v.
United Parcel Serv., Inc., No. 10-CV-1247
(MKB), 2013 WL 1232355, at *5 & n.10
(E.D.N.Y. Mar. 26, 2013) (“Plaintiff’s
failure to accommodate claims are not
continuing violations but discrete actions.”)
(citing cases); O’Leary v. Town of
Huntington, No. 11-CV-3754 (JFB) (GRB),
2012 WL 3842567, at *8 (E.D.N.Y. Sept. 5,
2012) (“[A]n employee who continues
working after the denial of a reasonable
accommodation may not claim a continuing
violation.”); Davis v. N.Y. State Office of
Mental Health, No. 05-CV-5599 (ARR)
(LB), 2009 WL 5178440, at *6 (E.D.N.Y.
Dec. 31, 2009) (recognizing that the
continuing violation doctrine does not apply
to failure to accommodate claims); see also
Anderson v. N.Y.C. Dep’t of Corr., No. 12CV-4064 (RJS) (RLE), 2013 WL 5229790,
at *3 (S.D.N.Y. Sept. 17, 2013) (holding
that “the continuing violation exception does
not apply” where claim based upon discrete
acts). Moreover, plaintiff cannot save her
untimely failure to accommodate claim by
proffering
evidence
that
defendants
subjected her to a hostile work environment
after denying her proposed accommodation.
“[T]he Second Circuit has found that the
existence of a hostile environment claim
does not revive an otherwise time-barred
discrete act of discrimination.” Anderson v.
Nassau Cnty. Dep’t of Corr., 558 F. Supp.
2d 283, 298 (E.D.N.Y. 2008) (citing
Petrosino v. Bell Atl., 385 F.3d 210, 220 (2d

Cir. 2004); Sundaram v. Brookhaven Nat’l
Labs., 424 F. Supp. 2d 545, 561 (E.D.N.Y.
2006)); see, e.g., Walia v. Napolitano, --- F.
Supp. 2d ----, No. 11-CV-2512 (ADS)
(WDW), 2013 WL 6231175, at *21
(E.D.N.Y. Dec. 2, 2013); accord Ugactz,
2013 WL 1232355, at *5–6 (holding that
failure to accommodate claim was timebarred, but that hostile work environment
claim was timely as a continuing violation).
Therefore, plaintiff’s claim that defendants
failed to accommodate her alleged disability
on July 13, 2010, is time-barred.7
ii. Hostile Work Environment
As noted, plaintiff also claims that she
was subject to a hostile work environment
because of her discoid dermatitis and in
retaliation for her exemption from scrubbing
duties (the Hospital’s accommodation to her
for that condition). (Pl.’s Opp’n at 16–17,
23–24.) Specifically, plaintiff testified that
she was subject to “badgering,” constant
harassment, and resentment at work, which
she assumed to have been based on her
inability to scrub. (See, e.g., Krachenfels
Dep. at 189, 192, 236–41, 253, 257.) She
relies on the continuing violation doctrine to
support the timeliness of this claim. (See
Pl.’s Opp’n at 6–7.)
Plaintiff notes correctly that a hostile
work environment is a continuing violation.
See, e.g., Morgan, 536 U.S. at 115 (noting
that a hostile work environment claim’s
“very nature involves repeated conduct”).
As such, for a claim to be timely filed, only
7

Even if plaintiff had argued that her failure to
accommodate claim was timely because she
requested reconsideration of defendants’ decision to
deny her proposed accommodation within 300 days
of filing her EEOC charge, which she did not, the
Court concludes that “[m]ere requests to reconsider
cannot extend limitations periods applicable to the
ADA.” O’Leary, 2012 WL 3842567, at *7.

11

one act contributing to the hostile work
environment must have occurred within the
applicable limitations period. See, e.g.,
Raneri v. McCarey, 712 F. Supp. 2d 271,
281 (S.D.N.Y. 2010) (“To defeat the statute
of limitations by applying the continuing
violation theory, the evidence must show
that such a hostile environment was created
prior to, and continued into, [the limitations
period].”). A court must perform “an
individualized assessment of whether
incidents and episodes are related,” and then
determine whether any related incidents or
episodes occurred within the limitations
period. McGullam v. Cedar Graphics, Inc.,
609 F.3d 70, 77 (2d Cir. 2010). If no
relevant acts occurred within the limitations
period, then the hostile work environment
claim must be dismissed. See, e.g., id. at 76–
78 (dismissing hostile work environment
claim where most recent relevant conduct
occurred outside the applicable limitations
period).

which occurred when plaintiff was on leave,
has no bearing on plaintiff’s hostile work
environment claim, which requires evidence
of harassment in the “workplace.” See, e.g.,
Gillman v. Inner City Broad. Corp., No. 08CV-8909 (LAP), 2011 WL 181732, at *1
(S.D.N.Y. Jan. 18, 2011); accord Perry v.
Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir.
1997)
(holding that
hostile
work
environment claim requires evidence that
harassment created “an abusive working
environment”). Accordingly, because it is
undisputed that plaintiff was not subject to
harassment in the workplace after February
9, 2011, the Court concludes that her
discrimination and retaliation hostile work
environment claims are time-barred. See
Smith v. UAW-GM Legal Servs. Plan, 48 F.
App’x 338, 340 (2d Cir. 2002) (summary
judgment) (affirming dismissal of hostile
work environment claim as time-barred
where plaintiff “was on leave during the
300-day period before she filed her claim
with the New York Division of Human
Rights”).8

In the instant case, even under a
continuing violation theory, plaintiff’s
hostile work environment claim is untimely
because plaintiff left work for good on
February 9, 2011—more than 300 days
before she filed her claim with the EEOC.
(See Defs.’ 56.1 ¶ 9; Krachenfels Dep. at
324.) Thus, after February 9, 2011, plaintiff
was no longer exposed to the harassment,
badgering, and resentment that had been
directed toward her while she was working
in the CSU. Plaintiff actually conceded this
fact in her own deposition. (See Krachenfels
Dep. at 349 (“Q: You weren’t at work. So,
therefore, you weren’t being exposed to any
conduct that you found offensive. A: Okay.
Q: So I’m asking, what happened? A: I
didn’t secure another position with them.”).)
As plaintiff’s own testimony makes clear,
the only conduct she complains of after
February 9, 2011, is defendants’ failure to
find another position for her in the Health
System. The denial of a transfer request,

iii. Constructive Discharge
In Flaherty v. Metromail Corp., the
Second Circuit held that a constructive
discharge claim accrues on “the date when
[the plaintiff] gave definite notice of her
intention to retire.” 235 F.3d 133, 138 (2d
Cir. 2000); see, e.g., Fierro v. N.Y.C. Dep’t
of Educ., --- F. Supp. 2d. ----, No. 13-CV3637 (PAE), 2014 WL 425946, at *3
(S.D.N.Y. Feb. 4, 2014); Cohen v. City of
8

The deadline to file a charge of discrimination with
the EEOC “is not jurisdictional and, like a statute of
limitations, is subject to equitable tolling . . . in rare
and exceptional circumstances.” Zerilli-Edelglass v.
N.Y.C. Transit Auth., 333 F.3d 74, 80 (2d Cir. 2003)
(internal citations and quotation marks omitted). In
the instant case, plaintiff does not argue for equitable
tolling, and the Court finds no basis to apply
equitable tolling here.

12

such individual holds or desires.” 42 U.S.C.
§ 12111(8); see McBride, 583 F.3d at 96.
Accordingly, a plaintiff can establish a
prima
facie
claim
of
disability
discrimination based on the failure to
accommodate a disability by proving the
following elements:

New York, No. 12-CV-1932 (RRM) (RLM),
2013 WL 4010196, at *7 n.5 (E.D.N.Y.
Aug. 5, 2013). Here, plaintiff submitted her
letter of resignation on August 2, 2011.
(Defs.’ 56.1 ¶ 84.) Accordingly, plaintiff’s
constructive discharge claim is timely.
iv. Retaliation

(1) plaintiff is a person with a
disability under the meaning of the
ADA; (2) an employer covered by
the statute had notice of his
disability; (3) with reasonable
accommodation, plaintiff could
perform the essential functions of the
job at issue; and (4) the employer has
refused
to
make
such
accommodations.

Plaintiff claims that defendants failed to
transfer her to a new position in the Health
System, and that defendants’ failure to do so
was an act of unlawful retaliation. (See Pl.’s
Opp’n at 16–17.) A retaliation claim
premised on the denial of a request to
transfer—which is a discrete act, see, e.g.,
Colvin, 2014 WL 2863224, at *17—that
occurred on or after March 9, 2011, would
be timely. Because plaintiff claims that she
was denied a transfer while she was on leave
up until August 2, 2011, the Court considers
the merits of this claim.

McMillan v. City of New York, 711 F.3d
120, 125–26 (2d Cir. 2013) (citing McBride,
583 F.3d at 97). Once a plaintiff has
established a prima facie case, the burden
shifts to the defendant to show “(1) that
making a reasonable accommodation would
cause it hardship, and (2) that the hardship
would
be
undue.”
Mitchell
v.
Washingtonville Cent. Sch. Dist., 190 F.3d
1, 6 (2d Cir. 1999) (citing Borkowski v.
Valley Cent. Sch. Dist., 63 F.3d 131, 138 (2d
Cir. 1995)); see also Scalera v. Electrograph
Sys., Inc., 848 F. Supp. 2d 352, 360
(E.D.N.Y. 2012) (“[O]nce Plaintiff puts
forth a prima facie case, the burden shifts to
the employer to demonstrate that the
employee’s proposed accommodation would
result in an undue hardship.”).

2. Failure to Accommodate
Even assuming arguendo that plaintiff’s
failure to accommodate claim were timely,
the Court concludes that defendants are
entitled to summary judgment on this claim
because there is no evidence that plaintiff
was disabled within the meaning of the
ADA.
a. Legal Standard
“Discrimination in violation of the ADA
includes, inter alia, ‘not making reasonable
accommodations to the known physical or
mental limitations of an otherwise qualified
individual with a disability.’” McBride v.
BIC Consumer Prods. Mfg. Co., Inc., 583
F.3d 92, 96 (2d Cir. 2009) (quoting 42
U.S.C. § 12112(b)(5)(A)). Moreover, a
“qualified individual” under the ADA is “an
individual who, with or without reasonable
accommodation, can perform the essential
functions of the employment position that

With respect to the first element—
whether plaintiff is disabled—the ADA
Amendment Act of 2008 (“ADAAA”),
effective January 1, 2009, altered the
analysis of what constitutes a disability. In
particular, “[t]he ADAAA substantially
broadened the definition of a disability
under the law, in explicit response to Sutton
v. United Air Lines, 527 U.S. 471 (1999) and
13

she is actually disabled), she must “(1)
‘show that [she] suffers from a physical or
mental impairment,’ (2) ‘identify the activity
claimed to be impaired and establish that it
constitutes a ‘major life activity,’’ and (3)
‘show that [her] impairment ‘substantially
limits’ the major life activity previously
identified.’” Kravtsov, 2012 WL 2719663, at
*10 (quoting Weixel v. Bd. of Educ., 287
F.3d 138, 147 (2d Cir. 2002)).9

Toyota Motor Mfg. v. Williams, 534 U.S.
184 (2002), in which the ADA’s terms
defining disability had been strictly
defined.” Green v. DGG Props. Co., Inc.,
No. 11-CV-1989 (VLB), 2013 WL 395484,
at *9 (D. Conn. Jan. 31, 2013) (internal
quotation marks and citation omitted); see
also Kravtsov v. Town of Greenburgh, No.
10-CV-3142 (CS), 2012 WL 2719663, at
*10 (S.D.N.Y. July 9, 2012) (“In enacting
the ADA, Congress intended to provide
broad coverage for individuals with
disabilities, and in enacting the ADAAA in
2008, rejected Supreme Court precedent in
Toyota Motor Mfg. v. Williams, 534 U.S.
184 (2002), as interpreting the term
‘substantially limits’ to require a greater
degree of limitation than was intended.”
(internal quotation marks and citation
omitted)). “While the terms of the statute
were not changed, the interpretation of those
terms was modified.” Brtalik v. S.
Huntington Union Free Sch. Dist., No. 10CV-0010, 2010 WL 3958430, at *7
(E.D.N.Y. Oct. 6, 2010). Specifically, the
ADAAA directs courts to construe the term
disability “in favor of broad coverage of
individuals under [the ADA], to the
maximum extent permitted by the terms of
[ADA].” 42 U.S.C. § 12102(4)(A).

b. Application
Plaintiff’s claimed impairment is discoid
dermatitis, and plaintiff identifies sleeping,
caring for herself, and working as the major
life activities that the discoid dermatitis
substantially limited. (See Pl.’s Opp’n 8–
10.) It is undisputed that sleeping, caring for
oneself, and working are major life
activities. See 42 U.S.C. § 12102(2) (setting
forth non-exhaustive list of major life
activities including “caring for oneself, . . .
sleeping, . . . and working”). The parties
dispute
whether
discoid
dermatitis
substantially limited plaintiff’s ability to
perform these activities.
Although the ADA does not define a
substantial limitation, see, e.g., Kravtsov,
2012 WL 2719663, at *10, the EEOC

The ADA defines a “disability” as:

An individual “regarded as” disabled, but not
actually disabled, cannot bring a failure to
accommodate claim as a matter of law. See 42 U.S.C.
§ 12201(h) (“A covered entity under subchapter I, a
public entity under subchapter II, and any person who
owns, leases (or leases to), or operates a place of
public accommodation under subchapter III, need not
provide a reasonable accommodation or a reasonable
modification to policies, practices, or procedures to
an individual who meets the definition of disability in
section 12102(1) of this title solely under
subparagraph (C) of such section.”); see, e.g., Powers
v. USF Holland, Inc., 667 F.3d 815, 823 n.7 (7th Cir.
2011) (“[T]he ADAAA clarified that an individual
‘regarded as’ disabled (as opposed to actually
disabled) is not entitled to a ‘reasonable
accommodation.’” (quoting 42 U.S.C. § 12201(h))).
9

(A) a physical or mental impairment
that substantially limits one or more
major life activities of such
individual;
(B) a record of such an impairment;
or
(C) being regarded as having such an
impairment.
42 U.S.C. § 12102(1). For a plaintiff to
establish that she has a disability under the
statute’s first subsection (i.e., to show that

14

regulations promulgated after the enactment
of the ADAAA make clear that the standard
“is not meant to be . . . demanding,” 29
C.F.R. § 1630.2(j)(1)(i), and “should not
demand
extensive
analysis,”
id.
§ 1630.2(j)(1)(iii). Thus, an impairment will
be considered a disability under the ADA
“‘if it substantially limits the ability of an
individual to perform a major life activity as
compared to most people in the general
population.’” Risco v. McHugh, 868 F.
Supp. 2d 75, 108 n.47 (S.D.N.Y. 2012)
(quoting 29 C.F.R. § 1630.2(j)(1)(ii)). An
impairment “‘need not prevent, or
significantly or severely restrict, the
individual from performing a major life
activity in order to be considered
substantially limiting.’” Kravtsov, 2012 WL
2719663, at *10 (quoting 29 C.F.R.
§ 1630.2(j)(1)(ii)); see also Brandon v.
O’Mara, No. 10-CV-5174 (RJH), 2011 WL
4478492, at *7 (S.D.N.Y. Sept. 28, 2011)
(“[T]he revised EEOC regulations provide
that ‘[a]n impairment is a disability . . . if it
substantially limits the ability of an
individual to perform a major life activity as
compared to most people in the general
population. That is, while ‘[a]n impairment
need not prevent, or significantly or severely
restrict, the individual from performing a
major life activity in order to be considered
substantially limiting,’ the substantially
limits analysis is comparative.” (quoting 29
C.F.R. § 1630.2(j)(1)(ii))).

showering, plaintiff testified that when her
condition “flare[d] up,” showering was very
painful, and she slept “[v]ery poorly”
because the itching was “maddening.”
(Krachenfels Dep. at 151–52.) The Second
Circuit has held that a substantial limitation
on sleeping must be one that is “worse than
is suffered by a large portion of the nation’s
adult population.” Colwell v. Suffolk Cnty.
Police Dep’t, 158 F.3d 635, 644 (2d Cir.
1998); accord 29 C.F.R. § 1630.2(j)(1)(ii)
(defining disability to mean impairment that
substantially limits the performance of a
major life activity “as compared to most
people in the general population” (emphasis
added)). Plaintiff’s general statement that
discoid dermatitis caused her some difficulty
sleeping, without any more detail, does not
satisfy this standard. As for the pain she
experienced while taking showers, there is
no evidence that plaintiff was limited in her
ability to take showers as a result. (See
Krachenfels Dep. at 151 (“I have to shower,
but I have to deal with the pain.”).) While
the Court does not mean to minimize the
pain plaintiff may feel, the issue is not
whether plaintiff felt pain while showering;
it is whether that pain, caused by discoid
dermatitis, substantially limited her ability to
shower in any way. Compare Verhoff v.
Time Warner Cable, Inc., 478 F. Supp. 2d
evidence substantiating the specific limitations to
which he claims he is subject due to his condition,’
he cannot establish that he is disabled within the
meaning of the ADA.” Baerga v. Hosp. For Special
Surgery, No. 97-CV-0230 (DAB), 2003 WL
22251294, at *6 (S.D.N.Y. Sept. 30, 2003) (quoting
Johnson v. St. Clare’s Hosp. & Health Ctr., No. 96CV-1425 (MBM), 1998 WL 236235, at *8 (S.D.N.Y.
May 13, 1998)) (citing cases). The Second Circuit
has not taken a clear position on this issue, but the
First and Third Circuits have both held that medical
evidence is not absolutely necessary to support a
claim of disability under the ADA. See Katz v. City
Metal Co., Inc., 87 F.3d 26, 32 (1st Cir. 1996);
Marinelli v. City of Erie, Pa., 216 F.3d 354, 360 (3d
Cir. 2000).

Plaintiff’s own deposition testimony
provides the only factual basis for her
asserted difficulties in performing these
major life activities. Even assuming
arguendo that plaintiff could establish the
substantial limitation of a major life activity
without medical records, she has not done so
here. 10 With respect to sleeping and
“Courts in the Second Circuit have consistently
held that when a plaintiff fails ‘to offer any medical
10

15

933, 939 (N.D. Ohio 2006) (concluding that
plaintiff “failed to show that his ability to
care for himself [was] significantly
restricted in ‘condition, manner or duration’
as compared to the average person in the
general
population,”
where
he
acknowledged that he could shower,
although sometimes “pain and itching
cause[d] him to take more time doing so”
due to eczema), aff’d, 299 F. App’x 488 (6th
Cir. 2008), with E.E.O.C. v. Chevron
Phillips Chem. Co., LP, 570 F.3d 606, 617
(5th Cir. 2009) (holding that plaintiff
“submitted sufficient evidence to survive
summary judgment on the question of
whether she was substantially limited in the
major life activity of caring for herself,”
where plaintiff had attested “that she often
did not shower for several days because
contact with the water was painful”).
Because plaintiff has shown at most that her
skin condition was painful at times, she has
failed to create a triable issue of fact as to
whether her discoid dermatitis substantially
limited her ability to care for herself. See,
e.g., O’Kane v. Lew, No. 10-CV-5325
(PKC), 2013 WL 6096775, at *7 (E.D.N.Y.
Nov. 20, 2013) (evidence that psoriasis and
arthritic
psoriasis
were
“painful,
uncomfortable, and socially isolating,”
without more, was insufficient to establish
substantial limitation of any major life
activity).

and quotation marks omitted); see, e.g.,
Petrone v. Hampton Bays Union Free Sch.
Dist., No. 03-CV-4359 (SLT) (ARL), 2013
WL 3491057, at *21 (E.D.N.Y. July 10,
2013), aff’d, No. 13-2960-CV, 2014 WL
2198612 (2d Cir. May 28, 2014). “A class of
jobs encompasses a breadth of positions
related to the one a plaintiff cannot perform,
not simply analogous positions with slight
variations.” Wegner v. Upstate Farms Coop., Inc., 560 F. App’x 22, 2014 WL
998195, at *2 (2d Cir. 2014) (summary
order) (citing Muller v. Costello, 187 F.3d
298, 313 (2d Cir. 1999)). “The inability to
perform a single, particular job does not
constitute a substantial limitation in the
major life activity of working.” Cameron v.
Cmty. Aid For Retarded Children, Inc., 335
F.3d 60, 65 (2d Cir. 2003) (internal citations
and
quotation
marks
omitted). 11
11

The EEOC regulations used to provide explicitly
that a substantial impairment in the major life activity
of working meant that the individual was
“‘significantly restricted in the ability to perform
either a class of jobs or a broad range of jobs,’” and
that “‘[t]he inability to perform a single, particular
job does not constitute a substantial limitation in the
major life activity of working.’” Cameron, 335 F.3d
at 65 (quoting 29 C.F.R. § 1630.2(j)(3)(i)). However,
the EEOC “has removed from the text of the
regulations a discussion of the major life activity of
working” because “no other major life activity
receives special attention in the regulation,” and “in
light of the expanded definition of disability
established by the [ADAAA], this major life activity
will be used in only very targeted situations.”
Interpretive Guidance on Title I of the Americans
with Disabilities Act, 29 C.F.R. Pt. 1630, App.
§ 1630.2(j) (“EEOC Interpretive Guidance”).
Nonetheless, the EEOC Interpretive Guidance, which
the Second Circuit has treated as authoritative, see,
e.g., Norville v. Staten Island Univ. Hosp., 196 F.3d
89, 99 (2d Cir. 1999), states that “[i]n the rare cases
where an individual has a need to demonstrate that an
impairment substantially limits him or her in
working, the individual can do so by showing that the
impairment substantially limits his or her ability to
perform a class of jobs or broad range of jobs in
various classes as compared to most people having

Nor has plaintiff submitted any evidence
that discoid dermatitis substantially impaired
her ability to work. For an impairment to
substantially limit the major life activity of
working, it must render the individual
“significantly restricted in the ability to
perform either a class of jobs or a broad
range of jobs in various classes as compared
to the average person having comparable
training, skills and abilities.” O’Connor v.
Huntington U.F.S.D., No. 11-CV-1275
(JFB) (ARL), 2014 WL 1233038, at *1
(E.D.N.Y. Mar. 25, 2014) (internal citations
16

Notwithstanding this legal standard, plaintiff
contends that discoid dermatitis substantially
impaired her ability to work only because
“she was restricted in her ability to perform
scrub duties.” (Pl.’s Opp’n at 10.) Critically,
there is no evidence in the record that the
inability to scrub precluded plaintiff from
performing any nursing job; on this record,
the responsibility to scrub pertains only to
the duties of a Perioperative RN-OR.
Because there is no evidence that plaintiff’s
condition prevented her from performing
any other nursing positions within her
qualifications, no reasonable jury could find
that plaintiff was substantially limited in her
ability to work. See, e.g., Squibb v. Mem’l
Med. Ctr., 497 F.3d 775, 783 (7th Cir. 2007)
(holding that plaintiff failed to raise triable
issue of fact as to whether her back
condition substantially impaired her ability
to work as a nurse, where evidence showed
that she could perform certain nursing jobs);
Sorensen v. Univ. of Utah Hosp., 194 F.3d
1084, 1089 (10th Cir. 1999) (holding that
plaintiff could not show that an impairment
substantially limited her ability to work
without establishing how she was
substantially limited in performing “the
class of regular nurse jobs,” not just the
specific “flight nurse position” that she had
held).

3. Constructive Discharge
a. Legal Standard
In the absence of direct evidence of
discrimination, a disability discrimination
claim brought under the ADA is subject to
the burden-shifting framework established
by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792
(1973). See, e.g., McMillan, 711 F.3d at 125;
McBride, 583 F.3d at 96. Under this
framework, a plaintiff must first set forth a
prima facie case of discrimination in
violation of the ADA by showing the
following elements: “‘(1) his employer is
subject to the ADA; (2) he was disabled
within the meaning of the ADA; (3) he was
otherwise qualified to perform the essential
functions of his job, with or without
reasonable accommodation; and (4) he
suffered adverse employment action because
of his disability.’” McMillan, 711 F.3d at
125 (quoting Sista v. CDC Ixis N. Am., Inc.,
445 F.3d 161, 169 (2d Cir. 2006)). If the
plaintiff establishes a prima facie case of
unlawful discrimination, a rebuttable
presumption of discrimination arises, and
the burden shifts to the defendant to set forth
“some legitimate, nondiscriminatory reason”
for the adverse employment action.
McDonnell Douglas, 411 U.S. at 802.
Where the defendant articulates such a
reason,
then
the
presumption
of
discrimination is rebutted, and it “simply
drops out of the picture.” St. Mary’s Honor
Ctr. v. Hicks, 509 U.S. 502, 510–11 (1993)
(citation omitted). The burden then shifts
back to the plaintiff to show, without the
benefit of any presumptions, that a
reasonable jury could conclude by a
preponderance of the evidence that his
“disability was at least ‘a motivating factor’
for the adverse employment action.” Hong
Yin v. N. Shore LIJ Health Sys., --- F. Supp.
2d ----, No. 12-CV-1499 (DRH) (AKT),
2014 WL 2027305, at *10 (E.D.N.Y. May

Accordingly, even if plaintiff’s failure to
accommodate claim were not time-barred,
defendants would be entitled to summary
judgment on this claim.

comparable training, skills, and abilities.” EEOC
Interpretive Guidance. Moreover, “[d]emonstrating a
substantial limitation in performing the unique
aspects of a single specific job is not sufficient to
establish that a person is substantially limited in the
major life activity of working.” Id. Accordingly, the
test for determining whether a person’s ability to
work was substantially impaired has not changed.

17

19, 2014); see Parker v. Columbia Pictures
Indus., 204 F.3d 326, 336–37 (2d Cir.
2000). 12 To meet this burden, the plaintiff
may rely on evidence presented to establish
her prima facie case as well as additional
evidence. Such additional evidence may
include direct or circumstantial evidence of
discrimination. Desert Palace, Inc. v. Costa,
539 U.S. 90, 99–101 (2003). It is
insufficient, however, for a plaintiff merely
to show that she satisfies “McDonnell
Douglas’s minimal requirements of a prima
facie case” and to put forward “evidence
from which a factfinder could find that the
employer’s explanation . . . was false.”
James v. N.Y. Racing Ass’n, 233 F.3d 149,
157 (2d Cir. 2000). Instead, the key is
whether there is sufficient evidence in the
record from which a reasonable trier of fact
could find in favor of plaintiff on the
ultimate issue, i.e., whether the record
contains sufficient evidence to support an
inference of discrimination. See id.; Connell

v. Consol. Edison Co., 109 F. Supp. 2d 202,
207–08 (S.D.N.Y. 2000).
b. Application
To satisfy the adverse employment
action of her prima facie case, plaintiff
claims that her voluntary resignation on
August 2, 2011, constituted a constructive
discharge. Cf. O’Connor, 2014 WL
1233038, at *9 (“A constructive discharge is
‘functionally the same as an actual
termination’ and therefore is considered an
adverse employment action.” (quoting Pa.
State Police v. Suders, 542 U.S. 129, 148
(2004))). A constructive discharge occurs in
the absence of a “discrete, identifiable act,”
when an employer, “‘rather than directly
discharging an individual, intentionally
creates an intolerable atmosphere that forces
an employee to quit voluntarily.’” Flaherty,
235 F.3d at 138 (quoting Chertkova v. Conn.
Gen. Life Ins. Co., 92 F.3d 81, 89 (2d Cir.
1996)); see also Morris v. Schroder Cap.
Mgmt. Int’l, 481 F.3d 86, 89 (2d Cir. 2007)
(stating that constructive discharge “occurs
‘when the employer, rather than acting
directly, deliberately makes an employee’s
working conditions so intolerable that the
employee is forced into an involuntary
resignation.’” (quoting Pena v. Brattleboro
Retreat, 702 F.2d 322, 325 (2d Cir. 1983))).
“To find that an employee’s resignation
amounted to a constructive discharge, ‘the
trier of fact must be satisfied that the . . .
working conditions would have been so
difficult or unpleasant that a reasonable
person in the employee’s shoes would have
felt compelled to resign.’” Whidbee v.
Garzarelli Food Specialties, Inc., 223 F.3d
62, 73 (2d Cir. 2000) (quoting Lopez v. S.B.
Thomas, 831 F.2d 1184, 1188 (2d Cir.
1987)). This inquiry is an objective one; a
court considers how “a reasonable person in
the employee’s position” would have found
her work conditions. Petrosino, 385 F.3d at
230. In addition, in an ADA case, the

Following the Supreme Court’s decisions in
University of Texas Southwestern Medical Center v.
Nassar, 133 S. Ct. 2517 (2013), and Gross v. FBL
Financial Services, Inc., 129 S. Ct. 2343 (2009), it is
an open question in this Circuit whether an ADA
plaintiff must now show that disability discrimination
(or the plaintiff’s protected activity, in a retaliation
claim) was a but-for cause of the adverse
employment action. See Castro v. City of New York, -- F. Supp. 2d ----, No. 10-CV-4898 (NG) (VVP),
2014 WL 2582830, at *14 n.34 (E.D.N.Y. June 5,
2014) (“[T]he question of whether the heightened,
‘but-for’ standard of causation for Title VII
retaliation claims . . . applies to claims asserted under
the ADA, is one that has not yet been addressed by
the Second Circuit.”); see also Tse v. New York
Univ., No. 10-CV-7207 (DAB), 2013 WL 5288848,
at *18 n.18 (S.D.N.Y. Sept. 19, 2013); Najjar v.
Mirecki, No. 11-CV-5138 (KBF), 2013 WL 3306777,
at *7 (S.D.N.Y. July 2, 2013). This Court need not
resolve that issue in this case because, as discussed
infra, plaintiff has not produced sufficient evidence
from which a rational jury could find that she was
constructively discharged, or that disability
discrimination occurred, even under the “motivating
factor” standard.
12

18

plaintiff must establish that the constructive
discharge “occurred in circumstances giving
rise to an inference of discrimination on the
basis of” plaintiff’s disability. Terry v.
Ashcroft, 336 F.3d 128, 152 (2d Cir. 2003)
(internal quotation marks and citations
omitted). Ultimately, “[t]he standard for
constructive discharge is a demanding one.”
De La Peña v. Metro. Life Ins. Co., 953 F.
Supp. 2d 393, 419 (E.D.N.Y. 2013), aff’d,
552 F. App’x 98 (2d Cir. 2014).

changed, correct? A: Uh-huh, yes. Q: And
I’m asking you, what evidence do you have
that suggests that those two things are
linked? A: You would have to be there to
understand it.”)). Second, even the specific
examples of hostility toward plaintiff taken
together—such as Dr. Glassman cursing at
plaintiff and Cifu yelling with her finger in
plaintiff’s face—do not satisfy the
demanding standard to find a constructive
discharge. In short, “[a]n employee is not
constructively discharged because she does
not like her assignments, receives unfair
criticism, or is yelled at by supervisors.”
Katz v. Beth Israel Med. Ctr., No. 95-CV7183 (AGS), 2001 WL 11064, at *14
(S.D.N.Y. Jan. 4, 2001); see, e.g., Spence v.
Md. Cas. Co., 995 F.2d 1147, 1149–50,
1156–58 (2d Cir. 1993) (no constructive
discharge claim despite evidence that
plaintiff was “ranted and cursed” at). These
episodes—even if traumatizing to plaintiff—
cannot support a rational finding that
plaintiff’s experience in the Hospital was so
intolerable that a reasonable person in her
position would have felt compelled to
resign. Moreover, “[t]he fact that a plaintiff
had been out on leave for a time prior to her
resignation makes it less likely that the
resignation was prompted by an atmosphere
so intolerable that a reasonable person
would have felt compelled to resign.” Katz,
2001 WL 11064, at *12; see also
Weisbecker v. Sayville Union Free Sch.
Dist., 890 F. Supp. 2d 215, 235 (E.D.N.Y.
2012) (“As a threshold matter, plaintiff was
on leave during the time of the
recommendation, so plaintiff’s ‘working
conditions’ could not have been so
intolerable that the plaintiff was forced into
an involuntary resignation.”).

In this case, even when resolving all
factual disputes in plaintiff’s favor and
considering those facts in the light most
favorable to plaintiff, no reasonable jury
could find that plaintiff’s treatment was
objectively intolerable. First, much of the
evidence of harassment is too vague to
permit such a finding. See, e.g., Fraser v.
State of N.Y., SUNY at Stony Brook, 769 F.
Supp. 91, 94 (E.D.N.Y. 1991) (granting
summary judgment to defendant on
constructive discharge claim where plaintiff
submitted only “conclusory statements” of
an intolerable work environment); accord
Edwards v. Elmhurst Hosp. Ctr., No. 07CV-2452 (RRM), 2009 WL 6683365, at *4
(E.D.N.Y. Sept. 17, 2009) (“[T]he Second
Circuit has pointed out that ‘[t]o allow a
party to defeat a motion for summary
judgment by offering purely conclusory
allegations of discrimination, absent any
concrete particulars, would necessitate a trial
in all Title VII [and ADA] cases.’” (quoting
Meiri v. Dacon, 759 F.2d 989, 997 (2d Cir.
1985)) (brackets in original)), report &
recommendation adopted, 2010 WL
2874113 (E.D.N.Y. July 19, 2010).
Specifically, although plaintiff testified that
she experienced “badgering” by her
coworkers that became “worse and worse on
a daily basis” (Krachenfels Dep. at 189), she
could not articulate a concrete basis for this
feeling (see id. at 249 (“Q: Okay. You are
claiming that you got an accommodation,
and the attitude of these co-workers of yours

In addition, no reasonable jury could
conclude that the Hospital or Health System
deliberately
created
an
intolerable
environment for plaintiff. See, e.g., Adams v.
Festival Fun Parks, LLC, 560 F. App’x 47,
19

Spence, 995 F.2d at 1156 (holding that “a
constructive discharge cannot be proven
merely by evidence that an employee . . . did
not receive a raise, or preferred not to
continue working for that employer”);
Gumbs v. Hall, 51 F. Supp. 2d 275, 283
(W.D.N.Y. 1999) (rejecting constructive
discharge claim where evidence showed that
plaintiff was “less than satisfied with the
alternatives offered to her, because of her
subjective belief that they would be a step
down from her prior position”), aff’d, 205
F.3d 1323 (2d Cir. 2000).

2014 WL 1099215, at *2 (2d Cir. 2014)
(summary order) (“Adams has not adduced
sufficient evidence to create a material
question of fact regarding whether Festival
deliberately created the negative work
atmosphere of which Adams complains.”).
In particular, the loss in pay that plaintiff
suffered by losing the ability to take on-call
shifts could not, in this case, support a
finding that defendants meant to push
plaintiff out of her job. Even though plaintiff
testified that the loss in income was
“substantial” (Krachenfels Dep. at 191), it is
undisputed that the Hospital offered plaintiff
a full-time position in an effort to
compensate her for the income she would
lose by no longer working on-call shifts (id.
at 197 (“Q: Okay. So when you were no
longer able to do the on call because of the
hospital’s decision regarding the staffing,
okay, they chose to offer you the
opportunity to supplement your income; is
that correct? A: Yes.”)). It can hardly be said
that the Hospital or Health System intended
for plaintiff to resign by offering her a fulltime position. Nor do defendants’ actions
following February 9, 2011, support a
constructive discharge. Plaintiff contends
that defendants were unhelpful in her search
for a new job. What she ignores, however, is
that she decided to leave her position in the
CSU even though no rational jury could find
that her work environment was intolerable.
Thus, even if defendants subsequently
offered plaintiff only entry level positions
beneath her qualifications as an alternative
to her job in the CSU, no reasonable juror
could equate that course of action with a
demotion. Cf. Scott v. Harris Interactive,
Inc., 512 F. App’x 25, 27–28 (2d Cir. 2013)
(summary order) (noting that demotion may
constitute
evidence
of
constructive
discharge). It is not enough for plaintiff to
establish that she did not like her job in the
CSU and was dissatisfied with defendants’
efforts to secure her a different job. See, e.g.,

Finally, plaintiff can point to only one
comment by one coworker indicating that
any negative actions directed toward her
related
to
plaintiff’s
inability
or
unwillingness to scrub. One fellow nurse
told plaintiff, “you have to admit, Annmarie,
you only do 50 percent of your job.”
(Krachenfels Dep. at 253.) That is all. With
respect to the surgeons in the CSU, plaintiff
testified that she did not think any of the
surgeons disliked her because of her hand
condition. (Id. at 295.) As for Cifu, plaintiff
could only “guess” at what motived Cifu to
harass her. (Id. at 267.) On the basis of this
evidence, plaintiff has failed to create a
triable issue of fact as to whether the
conditions of her workplace “occurred in
circumstances giving rise to an inference of
discrimination on the basis of” plaintiff’s
disability. Terry, 336 F.3d at 152.
In sum, a reasonable jury could not find
a constructive discharge motivated by
disability discrimination.13

13

For substantially the same reasons discussed supra,
even if plaintiff’s hostile work environment claim
were not time-barred, a reasonable jury could not find
that plaintiff’s working conditions were “severe or
pervasive enough to create an objectively hostile or
abusive work environment.” Feingold v. New York,
366 F.3d 138, 150 (2d Cir. 2004).

20

4. Retaliation

defendants have proffered a legitimate, nondiscriminatory reason for denying her job
applications, and plaintiff has failed to come
forward with evidence from which a
reasonable jury could find that retaliation
was a motivating factor behind the transfer
denial.15

a. Legal Standard
Retaliation claims brought under the
ADA are examined under the same
McDonnell
Douglas
burden-shifting
framework discussed supra. See, e.g.,
Treglia v. Town of Manlius, 313 F.3d 713,
719 (2d Cir. 2002). To establish a prima
facie case of retaliation under the ADA, the
plaintiff must show the following elements:
“(1) he engaged in an activity protected by
the ADA; (2) the employer was aware of
this activity; (3) the employer took adverse
employment action against him; and (4) a
causal connection exists between the alleged
adverse action and the protected activity.”
Id.

i. Prima Facie Case
The Court first concludes as a matter of
law that plaintiff’s inability to secure a
transfer does not constitute an adverse
employment action in this case. The
Supreme Court has defined an “adverse
employment action” in the Title VII
retaliation context (distinct from and broader
than the standard in the Title VII
discrimination context) to mean an action
that is “materially adverse” and that “well
might have dissuaded a reasonable worker
from making or supporting a charge of
discrimination.” Burlington N. & Santa Fe
Ry. Co. v. White, 548 U.S. 53, 68 (2006)
(internal citations omitted). The same
definition applies to retaliation claims under
the ADA. Platt v. Inc. Vill. of Southampton,
391 F. App’x 62, 64 (2d Cir. 2010)
(summary order); Ragusa v. Malverne
Union Free Sch. Dist., 381 F. App’x 85, 90
(2d Cir. 2010) (summary order).

b. Application
Plaintiff claims that defendants failed to
transfer her to a different position in the
Health System in retaliation for her request
not to scrub in July 2010.14 (See Pl.’s Opp’n
at 17.) Defendants are entitled to summary
judgment on this claim because, on this
record, no reasonable jury could find that
defendants’ failure to transfer plaintiff
amounted to an adverse employment action.
Moreover, even assuming arguendo that
plaintiff could establish a prima facie case
of retaliation, the Court concludes that

In the context of a discrimination claim
(as opposed to a retaliation claim), the
Second Circuit has held that “[a] transfer
denial is adverse when ‘the sought for
position is materially more advantageous
than the employee’s current position,
whether because of prestige, modernity,
training opportunity, job security, or some
other objective indicator of desirability.’”
Moore v. Metro. Transp. Auth., No. 07-CV-

14

Plaintiff has also alleged that defendants retaliated
against her request for an accommodation by
subjecting her to a hostile work environment. For the
reasons discussed supra, any hostile work
environment claim is time-barred. However, the
Court has considered all evidence concerning
defendants’ conduct and plaintiff’s work environment
as “background evidence” in support of plaintiff’s
timely claim for retaliatory failure to transfer. See,
e.g., Morgan, 536 U.S. at 113 (holding that acts taken
outside the limitations period may be considered as
“background evidence” in evaluating the merits of a
timely claim).

15

For the reasons discussed supra in note 10, the
Court assumes arguendo that the “motivating factor”
standard, and not the more demanding “but-for”
standard, applies to an ADA retaliation claim.

21

3561 (DAB), 2013 WL 7759749, at *11
(S.D.N.Y. Aug. 22, 2013) (quoting Beyer v.
Cnty. of Nassau, 524 F.3d 160, 165 (2d Cir.
2008)). “[I]f a transfer is truly lateral and
involves no significant changes in an
employee’s conditions of employment, the
fact that the employee views the transfer
either positively or negatively does not of
itself render the denial or receipt of the
transfer an adverse employment action.”
Williams v. R.H. Donnelley, Corp., 368 F.3d
123, 128 (2d Cir. 2004). Although the
definition of an adverse employment action
standard is relaxed for a retaliation claim,
see supra, a plaintiff asserting retaliation in
the form of a denied transfer is not
completely relieved of showing some facts
enabling the factfinder to compare the
plaintiff’s desired position to her actual
position. See Taylor v. N.Y.C. Dep’t of
Educ., No. 11-CV-3582, 2012 WL 5989874,
at *10 (E.D.N.Y. Nov. 30, 2012) (“The
courts in this Circuit have generally declined
to find that transfers (or denials of transfers)
amount to adverse employment actions,
even in the context of a retaliation claim,
where the action results merely in ‘an
inconvenience, such as an increased
commute or unfavorable hours.’” (quoting
Antonmarchi v. Consol. Edison Co. of N.Y.,
Inc., No. 03-CV-7735, 2008 WL 4444609,
at *15 (S.D.N.Y. Sept. 29, 2008)).

Goldman, Sachs & Co., 387 F. Supp. 2d
314, 323 (S.D.N.Y. 2005) (quoting
Petrosino, 385 F.3d at 227)). “[T]he
requirement ensures that the fact finder is
not left to speculate as to the qualifications
of the competing candidates, the damages to
be derived from the salary of unknown jobs,
the availability of alternative positions, the
plaintiff’s willingness to serve in them (e.g.,
in other locales or on other shifts), etc.”
Petrosino, 385 F.3d at 227. Similarly, when
evaluating failure to transfer claims on
summary judgment, courts have required the
plaintiff to present some evidence about a
particular position to which she sought to be
transferred. See, e.g., Divers v. Metro.
Jewish Health Sys., No. 06-CV-6704 (RRM)
(JMA), 2009 WL 103703, at *11 (E.D.N.Y.
Jan. 14, 2009) (“[U]nlike the cases in which
a denied transfer has been held to constitute
an adverse employment action, Divers never
asked to be transferred to a specific position
and thus was never denied a position for
which she actually applied. Additionally,
there is no evidence in the record
establishing that any comparable positions
for which she was qualified were even
available. Thus, Divers has come forth with
no ‘objective indicia’ that a jury could use to
determine whether MJHS’ handling of
Divers’ first transfer request ‘created a
materially significant disadvantage’ for
Divers.” (quoting Beyer, 524 F.3d at 163–
64)), aff’d, 383 F. App’x 34 (2d Cir. 2010);
Wright, 387 F. Supp. 2d at 323 (granting
summary judgment to defendants on failure
to transfer claim, where plaintiff had “not
introduced any evidence that he actually
applied for a specific position within
Goldman, stating at his deposition only that
he requested a transfer to ‘any other
department’”). Although these decisions
concern discrimination claims (as opposed
to retaliation claims), their analysis applies
with equal force to the lower standard for an
adverse employment action in a retaliation

Critically, in the instant case, the record
lacks evidence about the specific positions
in the Health System to which plaintiff
applied. Even plaintiff’s opposition papers
do not identify a particular position to which
plaintiff applied that would have been more
advantageous than her position in the CSU.
This dearth of evidence is fatal to plaintiff’s
retaliation claim. “As the Second Circuit . . .
has noted in the context of a failure to
promote claim, a specific application is
required to ‘ensure that, at the very least, the
plaintiff employee alleges a particular
adverse employment action.’” Wright v.
22

claim. Absent more concrete evidence
supporting plaintiff’s retaliatory failure to
transfer argument, a reasonable factfinder
could not conclude that defendants’ failure
to transfer plaintiff to a different position in
the Health System “well might have
dissuaded a reasonable worker from making
or supporting a charge of discrimination.”
White, 548 U.S. at 68; accord Bowen-Hooks
v. City of New York, No. 10-CV-5947
(MKB), 2014 WL 1330941, at *29
(E.D.N.Y. Mar. 31, 2014) (granting
summary judgment on failure to transfer
claim where plaintiff never actually
requested a particular transfer that was
denied).

and flip flops and, when she entered the
room, began playing with a blood pressure
machine. (Id. ¶ 39.) The interviewer
determined that plaintiff was not a good fit
for the position. (Id.) This evidence suffices
to shift the burden back to plaintiff to prove
that defendants’ proffered reasons for
denying her transfer requests were pretext
for retaliation. See, e.g., Boyer v. Riverhead
Cent. Sch. Dist., 343 F. App’x 740, 742 (2d
Cir. 2009) (summary order) (holding that
“the employer’s explanation that it made its
hiring decision based on interview
performances is sufficient to shift burden to
plaintiff to show that the explanation is a
pretext” (citing Byrnie v. Town of Cromwell,
Bd. of Educ., 243 F.3d 93, 105–07 (2d Cir.
2001))); McCoy v. People Care Inc., No. 11CV-2689 (RA), 2013 WL 5313433, at *6
(S.D.N.Y. Sept. 20, 2013) (noting that
plaintiff’s demeanor and inappropriate
responses to questions during interview are
legitimate reasons for failing to hire or
promote (citing cases)).

ii. Legitimate, Non-Retaliatory Reason
Assuming arguendo that plaintiff could
establish a prima facie case of retaliation,
the Court concludes that defendants have
proffered a legitimate, non-retaliatory reason
for rejecting plaintiff’s applications to other
positions in the Health System. In short,
defendants have presented uncontroverted
evidence that plaintiff did not obtain a
transfer because she was too limited in her
job search, was not qualified for all positions
to which she applied, and did not conduct
herself professionally in her job interviews.
(See Solivan Aff. ¶¶ 34–39.) For instance,
plaintiff applied for a position in Home
Care, which called plaintiff for an interview;
plaintiff never returned the call. (Id. ¶ 37.)
Plaintiff also applied for a night shift
position in Palliative Care in April 2011;
however, during her interview, she asked
numerous times whether she could work the
day shift. (Solivan Aff. ¶ 35; Krachenfels
Dep. at 341.) According to Solivan,
Palliative Care denied her application
because they needed night shift nurses and
feared that plaintiff would move to the day
shift as soon as she could. (Solivan Aff.
¶ 35.) In another interview for a different
position, plaintiff appeared dressed in jeans

iii. Pretext
Because defendants have articulated a
legitimate, non-retaliatory reason why
plaintiff was not transferred to a different
position in the Health System, the Court
turns to the ultimate question of whether
plaintiff has presented evidence from which
a reasonable jury could find that plaintiff’s
request for an accommodation was a
motivating factor in defendants’ failure to
transfer her. See, e.g., Treglia, 313 F.3d at
721 (“If a defendant meets this burden, ‘the
plaintiff must point to evidence that would
be sufficient to permit a rational factfinder
to conclude that the employer’s explanation
is merely a pretext for impermissible
retaliation.’” (quoting Cifra v. G.E. Co., 252
F.3d 205, 216 (2d Cir. 2001))).
Plaintiff contends that defendants’
decision to prevent plaintiff from working
23

on-call only after she requested an
accommodation is evidence of retaliatory
intent. (Pl.’s Opp’n at 17–18.) This fact
alone is insufficient to survive summary
judgment. Even if plaintiff had been
permitted to work on-call without restriction
before in 2008 and 2009, from which a
rational factfinder could infer that the
Hospital changed its policy with respect to
on-call nurses and scrubbing only after
plaintiff requested a formal accommodation,
it is uncontroverted that defendants’ policy
requiring on-call nurses to scrub was put in
place for patient safety. (See Defs.’ ¶ 37; see
also
Krachenfels
Dep.
at
161
(acknowledging that on-call nurses had to
scrub “[b]ecause if the scrub fainted, the RN
had to step into that place”).) The Second
Circuit has held that no reasonable jury
could infer an improper retaliatory motive
from a defendant’s change in policy, where
legitimate safety concerns indisputably
motivated the change. Gaines v. N.Y.C.
Transit Auth., 353 F. App’x 509, 510–11 (2d
Cir. 2009) (summary order) (citing Shannon
v. N.Y.C. Transit Auth., 332 F.3d 95, 103
(2d Cir. 2003)).

environment for plaintiff after she requested
an accommodation. For all those reasons
and the reasons stated here, no reasonable
jury could find that defendants were
motivated by plaintiff’s request for an
accommodation in denying her requests for
a transfer in 2011.
*

*

*

In sum, defendants are entitled to
summary judgment on plaintiff’s retaliatory
failure to transfer claim.
B. Age Discrimination Claims
1. Legal Standard
The ADEA states that it is “unlawful for
an employer . . . to discharge any individual
or otherwise discriminate against any
individual with respect to his compensation,
terms, conditions, or privileges of
employment, because of such individual’s
age.” 29 U.S.C. § 623(a)(1). The overriding
issue in an age discrimination case is
whether the plaintiff has met her burden of
proving that “age was the ‘but-for’ cause of
the challenged employer decision.” Gross v.
FBL Fin. Servs., Inc., 557 U.S. 167, 178
(2009) (holding that ADEA plaintiff cannot
establish disparate treatment by proving that
age was simply a motivating factor in
adverse employment decision). In the
absence of direct evidence of discrimination,
claims for employment discrimination based
on age are analyzed under the McDonnell
Douglas burden-shifting framework set forth
supra. See, e.g., Gorzynski v. JetBlue
Airways Corp., 596 F.3d 93, 106 (2d Cir.
2010) (holding that the Supreme Court’s
decision in Gross did not disturb “the
[McDonnell
Douglas]
burden-shifting
framework for ADEA cases that has been
consistently employed in [the Second]
Circuit”). A plaintiff establishes a prima
facie case of age discrimination under the

Moreover, there is no other evidence
from which a reasonable jury could infer
that defendants harbored an improper
retaliatory animus. The one comment about
plaintiff’s inability or unwillingness to scrub
was made by a fellow nurse, not by anyone
involved in the defendants’ decision making
processes. See, e.g., Tomassi v. Insignia Fin.
Grp., Inc., 478 F.3d 111, 115 (2d Cir. 2007)
(“[R]emarks made by someone other than
the person who made the decision adversely
affecting the plaintiff may have little
tendency to show that the decision-maker
was motivated by the discriminatory
sentiment expressed in the remark.”).
Moreover, for the reasons discussed supra in
connection with plaintiff’s constructive
discharge claim, there is no evidence that
defendants
created
an
intolerable
24

ADEA by showing “(1) that she was within
the protected age group, (2) that she was
qualified for the position, (3) that she
experienced adverse employment action,
and (4) that such action occurred under
circumstances giving rise to an inference of
discrimination.” Id. at 107.

reasonable jury could not conclude that
plaintiff suffered an adverse employment
action by being denied a transfer. See supra.
Moreover, even assuming arguendo that
plaintiff suffered an adverse employment
action in the form of a denied request to
transfer, the Court concludes that plaintiff
has failed to raise even a triable issue of fact
as to whether the denial of a transfer request
occurred under circumstances giving rise to
an inference of discrimination. Several key
facts are missing. Which position was
Peralta assigned? Did plaintiff apply to that
position? Was plaintiff qualified for that
position? Was Peralta? The record sheds no
light on these questions. Indeed, plaintiff
herself conceded that she has no evidence—
other than Peralta’s age and her belief that
Peralta was transferred out of the CSU—to
support her age discrimination claim. (See
Krachenfels Dep. at 193–94 (“Q: Okay.
What leads you to conclude that her age
came into consideration when they gave her
that job? A: I have nothing to say. Q: You
don’t have any evidence to support that? A:
I just have nothing to say.”).) No reasonable
jury could infer that plaintiff’s age was a
but-for cause of her inability to secure a
transfer out of the CSU merely from the
facts that Peralta was ten to fifteen years
younger than plaintiff and was transferred
elsewhere within the Health System. See,
e.g., Mandell v. Cnty. of Suffolk, 316 F.3d
368, 379 (2d Cir. 2003) (“A plaintiff relying
on disparate treatment evidence must show
she was similarly situated in all material
respects to the individuals with whom she
seeks to compare herself.” (internal citations
and quotation marks omitted)); Bruder v.
Jewish Bd. of Family & Children’s Servs.,
No. 10-CV-5951 (MKB), 2013 WL 789231,
at *6 (E.D.N.Y. Mar. 4, 2013) (holding that
“age is insufficient, without more, to
establish
an
inference
of
age
discrimination”).

2. Application
Plaintiff claims that defendants’ failure
to transfer her to a different position within
the Health System constitutes age
discrimination. In support of this claim, she
relies on her deposition testimony, in which
she stated her belief that Peralta, who was
between forty and forty-five years old, was
transferred to a different position in the
Health System because she could not scrub.
(Krachenfels Dep. at 190–94.) Defendants
are entitled to summary judgment on this
claim, as well, because no reasonable jury
could conclude that plaintiff has established
a prima facie case of age discrimination.
First, plaintiff’s age discrimination claim
fails for the same reason that her retaliation
claim has no merit: there is insufficient
evidence concerning the positions to which
plaintiff applied and for which she was
qualified. Cf. Chapotkat v. Cnty. of
Rockland, No. 11-CV-06209 NSR, 2014
WL 1373531, at *4 (S.D.N.Y. Apr. 4, 2014)
(holding that plaintiff must show “that she
applied for an available position for which
she was qualified” in order to establish
prima facie case of failure to promote
brought under ADEA (internal quotations
omitted)). 16 Without any such evidence, a
16

Plaintiff appears to argue that she was qualified for
“a transfer”—without identifying a particular
position—by noting that she was a qualified nurse.
(See Pl.’s Opp’n at 19.) By plaintiff’s own admission,
however, she would not have been automatically
qualified to perform any other nursing job. (See
Krachenfels Dep. at 342.)

25

C. NYSHRL Claims

allow the plaintiff to decide whether or not
to pursue the matter in state court.”).

Having determined that the federal
claims against defendants do not survive
summary judgment, the Court concludes that
retaining jurisdiction over any state law
claims is unwarranted. See 28 U.S.C.
§ 1367(c)(3); United Mine Workers of Am.
v. Gibbs, 383 U.S. 715, 726 (1966). “In the
interest of comity, the Second Circuit
instructs
that
‘absent
exceptional
circumstances,’ where federal claims can be
disposed of pursuant to Rule 12(b)(6) or
summary judgment grounds, courts should
‘abstain
from
exercising
pendent
jurisdiction.’” Birch v. Pioneer Credit
Recovery, Inc., No. 06-CV-6497T, 2007 WL
1703914, at *5 (W.D.N.Y. June 8, 2007)
(quoting Walker v. Time Life Films, Inc.,
784 F.2d 44, 53 (2d Cir. 1986)).

Accordingly, pursuant to 28 U.S.C.
§ 1367(c)(3), the Court declines to retain
jurisdiction over the remaining state law
claims given the absence of any federal
claims that survive summary judgment.17
IV. CONCLUSION
For the reasons set forth herein, the
Court grants defendants’ motion for
summary judgment in its entirety with
respect to the federal claims. The Court
declines
to
exercise
supplemental
jurisdiction over the state law claims and
thus dismisses those claims without
prejudice. The Clerk of the Court shall enter
judgment accordingly and close this case.
SO ORDERED.

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

_______________________
JOSEPH F. BIANCO
United States District Judge
Dated: July 29, 2014
Central Islip, NY
*

*

*

Plaintiff is represented by Kathleen Ann
Tirelli, Scott Michael Mishkin, P.C., One
Suffolk Square, Suite 240, Islandia, NY
11749. Defendants are represented by
Jessica C. Moller, Bond, Schoeneck & King
PLLC, 1010 Franklin Avenue, Suite 200,
17

Because the Court grants summary judgment to
defendants on all federal claims and declines to
exercise supplemental jurisdiction over the state
claims, the Court need not address the Health
System’s argument that it cannot be held liable
because it was not plaintiff’s employer.

26

Garden City, NY 11530, and Robert Arthur
LaBerge, Bond, Schoeneck & King PLLC,
One Lincoln Center, 16th Floor, Syracuse,
NY 13202.

27