Ilinca v. Board of Cooperative Educational Services, Nassau, Louise Flynn
MEMORANDUM & ORDER granting 83 Motion for Summary Judgment; For the foregoing reasons, Defendant's motion for summary judgment (Docket Entry 83) is GRANTED. The Clerk of the Court is directed to enter judgment accordingly and mark this case CLOSED. So Ordered by Judge Joanna Seybert on 11/29/2016. C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-againstBOARD OF COOPERATIVE EDUCATIONAL
SERVICES OF NASSAU,
MEMORANDUM & ORDER
Kathleen Ann Tirelli, Esq.
Scott M. Mishkin, Esq.
Scott Michael Mishkin, P.C.
One Suffolk Square, Suite 520
Islandia, NY 11749
Lewis R. Silverman, Esq.
Samantha Velez, Esq.
Rutherford & Christie LLP
369 Lexington Avenue, 8th Floor
New York, NY 10017
Gerald Stephen Smith, Esq.
Silverman and Associates
445 Hamilton Avenue, Suite 1102
White Plains, NY 10601
SEYBERT, District Judge:
action against the Board of Cooperative Educational Services of
harassment and retaliation under Title VII of the Civil Rights Act
of 1964 as amended, 42 U.S.C. §§ 2000 et. seq. (“Title VII”), and
a claim for retaliation under the Family and Medical Leave Act, 29
U.S.C. §§ 2611 et. seq. (“FMLA”).
Presently pending before the
Court is Defendant’s motion for summary judgment.
Docket Entry 83.)
For the following reasons, Defendant’s motion
Plaintiff began working as a bus driver at BOCES in 2000.
(Def.’s 56.1 Stmt., Docket Entry 77, ¶ 1.)
In or about 2009,
reporting to Lisa Rice (“Rice”) when she became his supervisor in
(Def’s 56.1 Stmt. ¶ 2.)
Plaintiff alleges that he verbally
complained to Rice that Flynn was sexually harassing him in or
about April 2011.
(Pl.’s 56.1 Counterstmt., Docket Entry 78,
June 2011 Bus Incident
Defendant alleges that on or about June 9, 2011, Rice
asked Plaintiff to switch buses with a driver who was having
difficulties with a bus’s directional signals.
(Def.’s 56.1 Stmt.
Plaintiff disputes that allegation, and avers that he
was asked to exchange his bus with another driver’s defective bus
(Pl.’s 56.1 Counterstmt. ¶¶ 13-14.)
following material facts are drawn from Defendant’s Local
Civil Rule 56.1 Statement and Plaintiff’s Local Civil Rule 56.1
Counterstatement. Any relevant factual disputes are noted. All
internal quotation marks and citations have been omitted.
alleges that Rice asked Plaintiff to exchange buses because he was
the closest driver to the other bus.
(Def.’s 56.1 Stmt. ¶ 15.)
Plaintiff alleges that Rice asked him to drive the defective bus
Counterstmt. ¶ 15.)
Plaintiff arrived at the location of the other driver’s
bus and refused to drive that bus because it was unsafe.
56.1 Stmt. ¶ 16.)
Defendant alleges that “Plaintiff’s supervisor”
told him that he did not have to drive the bus to the yard. (Def.’s
56.1 Stmt. ¶ 17.)
Plaintiff alleges that he was not told he was
not required to return the bus and he ultimately told Rice “he was
turning his radio off because he could not stand the stress of
Counterstmt. ¶ 17.)
The parties do not dispute that a mechanic
was dispatched with an additional bus and another employee drove
the bus that Plaintiff believed was unsafe.
(Def.’s 56.1 Stmt.
Sexual Harassment Complaints
After the June 2011 bus incident, Plaintiff gave his
union representative two letters and was informed that these
Superintendent for Business Services.
(Def.’s 56.1 Stmt. ¶¶ 20,
One letter detailed his disagreement regarding the bus, and
the other set forth allegations of sexual harassment by Flynn.
(Def.’s 56.1 Stmt. ¶¶ 21-22.) Plaintiff’s letter stated that Flynn
referred to him as “skinny boy,” and told Plaintiff that she could
access employees’ evaluation histories and he could view his
evaluation history on her computer if he desired to.
Stmt. ¶ 23.)
Thereafter, Plaintiff attended a meeting with Siegel and
Flynn where his sexual harassment allegations were discussed.
(Def.’s 56.1 Stmt. ¶¶ 24-25.)
The parties dispute whether Rice
was also present at the meeting.
(Defs.’ 56.1 Stmt. ¶ 24; Pl.’s
56.1 Counterstmt. ¶ 24.) Siegel advised that Flynn would no longer
observe or evaluate Plaintiff without another supervisor present.
(Def.’s 56.1 Stmt. ¶ 29.)
Plaintiff following this meeting.
(Def.’s 56.1 Stmt. ¶ 27.)
However, Plaintiff alleges that “Flynn followed him around many
times after he complained of sexual harassment, but did not always
ask him to sign a report.”
retaliation by Rice.
(Pl.’s 56.1 Counterstmt. ¶ 30.)
(Pl.’s 56.1 Counterstmt. ¶ 99.)
The record indicates that Monica Berkowitz was President of
CSEA Nassau Educational, Local 865. (Defs.’ Ex. Y, Dep. Tr.,
Docket Entry 85-27, 2:20.)
Harassment Complaint Form “was completed and signed by another
(Pl.’s 56.1 Counterstmt. ¶ 32.)
Harassment Complaint Form states that Plaintiff believed that “the
previous sexual harassment matter had been resolved following a
discussion with Joan Siegel.”
(Def.’s 56.1 Stmt. ¶¶ 32-33.)
However, in that form, Plaintiff also requested that “the actions
[ ] be stopped” and he be “treated with respect.”
Stmt. ¶ 34.)
Subsequently, Flynn met with Siegel, Executive Director
of Human Services Jeffrey Drucker (“Drucker”), and her union
(Def.’s 56.1 Stmt. ¶ 35.)
Flynn was “directed to
cease using terms that had been identified by Plaintiff and to be
mindful of her action towards Plaintiff.”
(Def.’s 56.1 Stmt.
¶ 35.) A letter memorializing this directive was placed in Flynn’s
(Def.’s 56.1 Stmt. ¶ 36.)
September 2011 Bus Route Incident
Blackman (“Blackman”) received complaints from parents that the
students on Plaintiff’s bus route were being picked up late.
(Def.’s 56.1 Stmt. ¶¶ 42, 48.) Blackman questioned Plaintiff about
his route and Plaintiff’s supervisors reviewed his GPS device to
confirm his arrival times and routes.
(Def.’s 56.1 Stmt. ¶¶ 43-
Defendant alleges that it determined Plaintiff needed to
take the “most” efficient route via the Southern State Parkway
(Def.’s 56.1 Stmt. ¶ 45.)
that the Parkway is the “most efficient” route and alleges that he
was concerned about “increased chances of getting into an accident”
on the highway. (Pl.’s 56.1 Counterstmt. ¶ 45.) Defendant alleges
that Plaintiff refused to drive on the Parkway and raised his voice
(Def.’s 56.1 Stmt. ¶¶ 49-50.)
that he took the Parkway after “voic[ing] his disagreement with
that decision.” (Pl.’s 56.1 Counterstmt. ¶ 49.) Blackman reported
this incident to Rice. (Def.’s 56.1 Stmt. ¶ 53.) On September 11,
2011, Plaintiff attended a meeting with Rice and Lori Rowcroft
representative was present.
(Def.’s 56.1 Stmt. ¶ 54; Pl.’s 56.1
Counterstmt. ¶ 54.)
Random Drug Test
In or about October 2011, Plaintiff was directed to take
a random drug test.
(Def.’s 56.1 Stmt. ¶ 56.)
permitted to take the test in a mobile location outside of the
office without female employees observing him.
(Def.’s 56.1 Stmt.
However, Plaintiff alleges that “when it was his turn to
The record indicates that Rowcroft was Senior Manager II,
Transportation Supervisor at BOCES. (Rowcroft’s Tr., Def.’s
Ex. P, Docket Entry 85-18, 43:8-11.)
have his urine test, Louise Flynn came out of the office and
notified Plaintiff that she had to watch him for his urine test.”
(Pl.’s 56.1 Counterstmt. ¶ 59.)
February 2012 Meeting
In February 2012, Plaintiff requested that his union
representative arrange a meeting with Drucker to discuss his
(Def.’s 56.1 Stmt. ¶ 60.)
alleges that on February 27, 2012, he prepared a letter “expressing
his dissatisfaction with the way his complaints [we]re not being
dealt with” and requesting an impartial investigation of his
complaints against Flynn.
(Pl.’s 56.1 Counterstmt. ¶¶ 102-103.)
On February 27, 2012, a meeting took place and Plaintiff
regarding how she should interact with Plaintiff.”
Stmt. ¶¶ 61-62.)
Plaintiff alleges that at this meeting, he was
advised that Flynn would continue to supervise him.
Counterstmt. ¶ 104.)
Subsequently, a letter dated February 29,
2012, was sent to Plaintiff, stating that: (1) Flynn had previously
been “given a directive” regarding her workplace conduct, and (2)
if Plaintiff believed that he was being subjected to retaliation,
he should report it to the Department of Human Resources and/or
(Def.’s 56.1 Stmt. ¶¶ 65-66.)
After the February 2012 meeting, Plaintiff was also
(Def.’s 56.1 Stmt. ¶ 67.)
Defendant alleges that
Plaintiff “refused to cooperate with that investigation.”
56.1 Stmt. ¶ 68.)
Plaintiff alleges that BOCES did not allow his
union access to BOCES employees or records, and “[w]hen Plaintiff
realized that the investigators were BOCES’ own hired attorneys
and paid by BOCES, he realized that it would not be a fair
Nevertheless, BOCES proceeded with its investigation and provided
Plaintiff with a report of its findings that his allegations of
ongoing sexual harassment were unsubstantiated.
Stmt. ¶¶ 70-72.)
July 2012 Bus Incident
In or about July 2012, a student on Plaintiff’s bus had
difficulty breathing. (Def.’s 56.1 Stmt. ¶ 73.) Defendant alleges
that Plaintiff “informed his supervisors that the parent had
supervisors until that day.”
(Def.’s 56.1 Stmt. ¶ 74.)
disputes that allegation as “hollow.”
(Pl.’s 56.1 Counterstmt.
Rowcroft reported this incident to Rice.
Stmt. ¶ 75.)
Plaintiff alleges that in May 2012, he sought mental
health assistance “due to the stress he experienced at work,” and
practitioner. (Pl.’s 56.1 Counterstmt. ¶¶ 105-106.) In June 2012,
Plaintiff took an approximately thirty-day medical leave as a
Counterstmt. ¶ 107.)
In September 2012, Plaintiff owned two handguns that he
was licensed to carry as concealed weapons.
(Def.’s 56.1 Stmt.
Defendant alleges that after Fasano’s September 14, 2012,
appointment with Plaintiff, she reported to the Nassau County
Police Department (the “Police Department”) that Plaintiff “had
Plaintiff concedes that Fasano contacted the Police Department,
but denies that Fasano reported that Plaintiff threatened his
(Pl.’s 56.1 Counterstmt. ¶ 79.)
state that Plaintiff indicated that owns “two Glocks” and he felt
his supervisors “were out to get him” and that he “should take
matters into [his] own hands.”
(Def.’s 56.1 Stmt. ¶¶ 81-82.)
The Police Department requested that Plaintiff surrender
his weapons pending their investigation into Fasano’s allegations.
(Def.’s 56.1 Stmt. ¶ 83.)
Plaintiff surrendered his handguns on
or about September 14, 2012.
(Def.’s 56.1 Stmt. ¶ 84.)
The Police Department contacted Rice and advised that
they had received a report about Plaintiff’s threats.
56.1 Stmt. ¶ 85.)
Defendant alleges that Rice advised Drucker and
Siegel of this information.
(Def.’s 56.1 Stmt. ¶ 86.)
alleges that “[i]t was BOCES that called Ms. Fasano and informed
her that Plaintiff was threatening them with his weapons, and
coerced her to call the police.”
(Pl.’s 56.1 Counterstmt. ¶ 111.)
Drucker contacted the Police Department and advised
(Def.’s 56.1 Stmt. ¶ 88.)
Defendant also placed a guard at a gate
entering, and installed a panic button in Rice’s office.
56.1 Stmt. ¶ 89.)
Police officers were stationed around the
perimeter of the property.
(Def.’s 56.1 Stmt. ¶ 89.)
Plaintiff alleges that he was hospitalized on September
(Pl.’s 56.1 Counterstmt. ¶ 115.)
Plaintiff avers that
Defendant directed him to a psychiatric examination, which took
place on November 9, 2012, with Dr. Allen Reichman.
Counterstmt. ¶ 117.)
Plaintiff alleges that Dr. Reichman found no
evidence of mental illness and determined that Plaintiff was fit
to perform his duties at BOCES.
(Pl.’s 56.1 Counterstmt. ¶¶ 118-
Plaintiff further alleges that on January 2, 2013, Rice sent
an email to Siegel and Drucker in which she asked them to “continue
to pursue the idea of finding Plaintiff unfit to drive a bus.”
(Pl.’s 56.1 Counterstmt. ¶ 120.)
Section 75 Hearing
On or about January 11, 2013, Plaintiff was referred for
charges pursuant to New York Civil Service Law Section 75 (the
“Section 75 Charges”).
(Def.’s 56.1 Stmt. ¶ 90.)
The Section 75
Charges included allegations that Plaintiff made a threatening
statement, was insubordinate in refusing to drive his bus on the
Parkway, and failed to report that a parent advised him of a
student’s medical needs.
(Def.’s 56.1 Stmt. ¶¶ 91-92.)
Hearing”). (Def.’s 56.1 Stmt. ¶ 93.) At the hearing’s conclusion,
Plaintiff was found guilty of five charges and the hearing officer
recommended that Plaintiff’s employment be terminated.
56.1 Stmt. ¶ 94.)
On September 12, 2013, Plaintiff’s employment
(Def.’s 56.1 Stmt. ¶ 95.)
Plaintiff alleges that
Defendant continues to retaliate against him by “discouraging
prospective employers from hiring Plaintiff by stating that he is
(Pl.’s 56.1 Counterstmt. ¶ 125.)
demonstrates that there is “no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
FED. R. CIV. P. 56(a).
A genuine factual issue exists where “the
evidence is such that a reasonable jury could return a verdict for
the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed 2d 202 (1986).
determining whether an award of summary judgment is appropriate,
interrogatory responses, and admissions on file, together with
other firsthand information that includes but is not limited to
Nnebe v. Daus, 644 F.3d 147, 156 (2d Cir. 2011).
The movant bears the burden of establishing that there
are no genuine issues of material fact.
Gallo v. Prudential
Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994).
the movant makes such a showing, the non-movant must proffer
specific facts demonstrating “a genuine issue for trial.”
v. Buonnadonna Shoprite LLC, No. 06-CV-5191, 2009 WL 3150431, at
*4 (E.D.N.Y. Sept. 25, 2009) (internal quotation marks and citation
Conclusory allegations or denials will not defeat
However, in reviewing the summary judgment
record, “‘the court is required to resolve all ambiguities and
draw all permissible factual inferences in favor of the party
against whom summary judgment is sought.’”
Sheet Metal Workers’
Nat’l Pension Fund v. Vadaris Tech. Inc., No. 13-CV-5286, 2015 WL
6449420, at *2 (E.D.N.Y. Oct. 23, 2015) (quoting McLee v. Chrysler
Corp., 109 F.3d 130, 134 (2d Cir. 1997)).
Defendant argues that Plaintiff’s Affidavit sworn to on
December 30, 2015, (“Plaintiff’s Affidavit”) should be stricken or
(Def.’s Br., Docket Entry 84, at 22-24;
Pl.’s Aff., Docket Entry 82.)
Defendant alleges that Plaintiff’s
Affidavit is improper because it contains unsupported assertions,
inadmissible, and/or contradict Plaintiff’s prior sworn testimony.
(Def.’s Br. at 22-23.)
Plaintiff counters that his Affidavit is
“based upon actual facts that are supported by documents and
(Pl.’s Br., Docket Entry 87, at 18.)
Federal Rule of Civil Procedure 56(d) provides that
affidavits or declarations used to oppose motions for summary
judgment “must be made on personal knowledge, set out facts that
would be admissible in evidence, and show that the affiant or
declarant is competent to testify on the matters stated.”
CIV. P. 56(c)(4).
Additionally, “a court may . . . strike portions
of an affidavit that are not based upon the affiant’s personal
knowledge, contain inadmissible hearsay or make generalized and
Sandor v. Safe Horizon, Inc., No. 08-CV-
The Court notes that Defendant’s Notice of Motion does not
contain a request to strike Plaintiff’s Affidavit. (See Def.’s
4636, 2011 WL 115295, at *6 (E.D.N.Y. Jan. 13, 2011) (internal
quotation marks and citation omitted; emphasis and ellipsis in
But see Isaacs v. Mid Am. Body & Equip. Co., 720 F.
Supp. 255, 256 (E.D.N.Y. 1989) (the Court may consider hearsay on
a motion for summary judgment where there is a “showing that
admissible evidence will be available at trial”).
the Court may decline to engage in a “line-by-line analysis” and
disregard any portions of an affidavit that do not comply with
Sandor, 2011 WL 115295, at *6.
Accord Serrano v.
Cablevision Sys. Corp., 863 F. Supp. 2d 157, 163 (E.D.N.Y. 2012)
(“[n]othing in the Federal Rules or case law requires a court to
conduct a line-by-line review of a challenged affidavit”).
The Court declines to engage in a line-by-line review of
Instead, the Court will only consider
Plaintiff’s Affidavit to the extent that it asserts “facts that
have been properly set-forth in accordance with the Federal Rules
of Civil Procedure as well as the Local Rules.” Morris v. Northrop
Grumman Corp., 37 F. Supp. 2d 556, 569 (E.D.N.Y. 1999) (“rather
than scrutinizing each line of each of the plaintiffs numerous
allegations, legal arguments, or hearsay and whether such hearsay
may be categorized as a hearsay exception, the Court . . . will
only consider relevant evidence that is admissible . . . .”).
Hostile Work Environment
environment claim by establishing that the conduct at issue: “(1)
is objectively severe or pervasive, that is . . . the conduct
creates an environment that a reasonable person would find hostile
subjectively perceives as hostile or abusive; and (3) creates such
an environment because of the plaintiff’s sex.”
La Grande v.
DeCrescente Distr. Co., Inc., 370 F. App’x 206, 209 (2d Cir. 2010)
This standard necessitates both an objective and
subjective inquiry as “the conduct complained of must be severe or
pervasive enough that a reasonable person would find it hostile or
environment to be abusive.”
Littlejohn v. City of N.Y., 795 F.3d
297, 321 (2d Cir. 2015) (internal quotation marks and citation
To overcome summary judgment, the plaintiff must proffer
discriminatory intimidation, ridicule, and insult, that the terms
and conditions of his employment were thereby altered.”
St. Catherine of Siena Med. Ctr., 966 F. Supp. 2d 167, 188-89
(E.D.N.Y. Aug. 14, 2013) (internal quotation marks and citation
In determining whether a work environment is hostile,
the Court examines the totality of the circumstances, which include
whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with
an employee’s work performance.’”
Littlejohn, 795 F.3d at 321
(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.
Ct. 367, 371, 126 L. Ed. 2d 295 (1993)).
infrequent, and at worst, mildly offensive conduct,” does not
suffice to raise triable issues of fact regarding an objectively
hostile work environment.
Cristofaro v. Lake Shore Cent. Sch.
Dist., 473 F. App’x 28, 30 (2d Cir. 2012).
particular actions that allegedly comprise the sexually hostile
(See generally Pl.’s Br. at 9-12.)
Plaintiff alleges that: (1) Flynn harassed him “via looks, and
stares,” (Pl.’s Br. at 6), and (2) Plaintiff was “singled out to
drive a defective bus back to the station” and “asked to drive his
bus on the Southern State Parkway even after he expressed his
feelings that it jeopardized his safety,” (Pl.’s Br. at 11).
record also indicates that Plaintiff alleges Flynn: (1) asked
exercises to do, what techniques to employ [ ] because she wanted
to get in shape,”
(Pl.’s Dep. Tr., Def.’s Ex. B, Docket Entries
85-2 through 85-4,
114:14-116:20, 117:23-119:22); (2) referred to
Plaintiff as “skinny boy” and remarked on his “sexy legs,”5 (Defs.’
56.1 Stmt. ¶ 23; Pl.’s Dep. Tr. 113:24-114:7); (3) looked at
Plaintiff’s groin while “briefly” reviewing his evaluation, and
called Plaintiff next to her and showed him that she could view
his employee evaluation history on her computer, (Pl.’s 56.1
Counterstmt. ¶ 23, Pl.’s Dep. Tr. 191:21-194:7); (4) “followed
[Plaintiff] many times after he complained of sexual harassment,”
(Pl.’s 56.1 Counterstmt. ¶ 30); and (5) “notified Plaintiff that
she had to watch him for his urine test,” (Pl.’s 56.1 Counterstmt.
The Court finds that Plaintiff has failed to raise
triable issues of fact regarding the existence of a hostile work
The record does not indicate the number of times
Flynn allegedly referred to Plaintiff as “skinny boy,” harassed
him with “looks and stares,” or followed him around.
testified that Flynn’s harassment began in 2009, (Pl.’s Dep. Tr.
114:14-116:5), concedes that her comments ceased in 2011, (Pl.’s
56.1 Counterstmt. ¶ 27), but alleges that after his meeting with
Siegel, Rowcroft, and Flynn in 2011, Flynn continued harassing him
by “looking” at him when he was wearing jeans or shorts, (Pl.’s
Dep. Tr. 169:20-170:9).
Nevertheless, in the absence of any
Plaintiff testified that in 2009, Flynn remarked on his “sexy
legs.” (Pl.’s Dep. Tr. 113:24-114:7.) However, Plaintiff’s
June 2011 complaint only refers to Flynn calling him “skinny
boy.” (See Def.’s Ex. H, Docket Entry 85-10.)
evidence regarding the frequency or duration of this behavior, a
reasonable jury could not evaluate whether these comments were
See Jackson v. Citiwide Corp. Transp.,
Inc., No. 02-CV-1323, 2004 WL 307243, at *3 (S.D.N.Y. Feb. 17,
2004) (granting summary judgment on the hostile work environment
claim and holding that “without any information as to frequency or
severity or duration of the alleged stares, no reasonable jury
could be expected to be able to evaluate whether these purported
actions contributed to the altering of [Plaintiff’s] conditions of
However, with respect to severity, the Court finds that
Flynn’s overtly sexual conduct--namely, the verbal remarks, looks
and stares, following Plaintiff around, and incident in which she
inappropriate and grossly unprofessional, were relatively mild.
See Lewis v. City of Norwalk, 562 F. App’x 25, 28-29 (2d Cir. 2014)
(affirming the grant of summary judgment to the defendant where
“sporadically” licked his lips and “leer[ed]” at him); Spina v.
Our Lady of Mercy Med. Ctr., No. 97-CV-4661, 2003 WL 22434143, at
*3 (S.D.N.Y. Oct. 23, 2003), aff’d, 120 F. App’x 408 (2d Cir. 2005)
(holding that the supervisor’s conduct in calling the plaintiff a
bitch on two occasions, stating that she “looked good in tight
pants,” and complimenting her hair and eyes was not sufficiently
severe to establish a hostile work environment and the supervisor’s
yelling and staring at the plaintiff and following her “was
While Plaintiff may have subjectively felt
uncomfortable as a result of Flynn’s behavior, this conduct does
not rise to the level of an objectively hostile work environment.
See Figueroa v. Johnson, 109 F. Supp. 3d 532, 552-53 (E.D.N.Y.
2015), aff’d, 648 F. App’x 130 (2d Cir. 2016) (granting summary
judgment to the defendant where the plaintiff alleged that during
a five-year period, his supervisor “smile[d] at [him] and paid
attention” on two or three occasions, “looked at him seductively
and batt[ed] her eyes,” on one or two occasions, and “briefly”
placed her hand on his thigh on one occasion); Geller v. N. Shore
Long Island Jewish Health Sys., No. 10-CV-0170, 2013 WL 5348313,
at *7-8 (E.D.N.Y. Sept. 23, 2013) (granting summary judgment in
favor of the defendant where the coworker drew a picture of a penis
on a whiteboard, inappropriately touched the plaintiff’s knee, and
made approximately twenty remarks over a five-year period that
included comments about the plaintiff’s breasts); Nieves v. Distr.
Council 37 (DC 37), AFSCME, AFL-CIO, No. 04-CV-8181, 2009 WL
4281454, at *6 (S.D.N.Y. Nov. 24, 2009), aff’d, 420 F. App’x 118
(2d Cir. 2011) (holding that the plaintiff’s allegations that one
or both of her co-workers, inter alia, told her that her clothes
were sexy and her hair was beautiful, blew kisses at her and other
employees, sent an inappropriate e-mail, and joked about sharing
While not dispositive, the Court notes that Plaintiff
has not alleged that Flynn “touched [him] in a sexual or suggestive
manner, and never asked [him] out or to engage in sexual acts with
Cristofaro, 473 F. App’x at 30 (allegations that the
supervisor, inter alia, “occasionally” remarked on the plaintiff’s
appearance, bet other employees about his ability to engage the
plaintiff in sexually explicit conversation, and “briefly made
contact with the side of [the plaintiff’s] body while standing
next to her,” did not suffice to raise triable issues of fact as
to the hostile work environment claim).
See also Spina, 2003 WL
supervisor “never touched plaintiff in a sexual manner, did not
ask her to go out with him or engage in a sexual relationship, and
never made any lewd gestures”).
But see Desardouin v. City of
Rochester, 708 F.3d 102, 105-106 (2d Cir. 2013) (denying summary
judgment on the plaintiff’s hostile work environment claim where
her supervisor stated that “her husband was not taking care of
[her] in bed” on a weekly basis for two to three months) (internal
quotation marks omitted; alteration in original).
Moreover, while Plaintiff may have subjectively believed
that Flynn’s “several” invitations to exercise together at her
home constituted sexual advances, the Court finds such remarks to
be facially neutral.
See Lewis, 562 F. App’x at 28-29 (holding
that “[t]he other facially sex-neutral incidents--invitations to
join [the supervisor’s] gym, invitations to have drinks with other
co-workers, and discussions about [the supervisor’s] personal
life--even if they made [the plaintiff uncomfortable]” failed to
establish a hostile work environment) (internal quotation marks
and citation omitted).
Similarly, the remaining conduct alleged
by Plaintiff consists of isolated incidents that were not overtly
“While facially neutral incidents may be considered among
the totality of the circumstances . . . in any hostile work
environment claim, there must be a circumstantial or other basis
for inferring that incidents sex-neutral on their face were in
Cristofaro, 473 F. App’x at 30 (internal
quotation marks and citation omitted).
Plaintiff has failed to
establish that he was asked to drive a defective bus to the station
and/or directed to drive his bus on the Southern State Parkway
Plaintiff to drive the defective bus, (Pl.’s Dep. Tr. 78:6-81:2),
and dispatchers directed Plaintiff to take the Parkway (Pl.’s Dep.
Tr. 67:3-68:20, Pl.’s 56.1 Counterstmt. ¶ 46).
Additionally, the Court is not persuaded that Flynn’s
conduct in stating that she had to “watch” Plaintiff’s drug test
occurred because of Plaintiff’s sex.
Plaintiff testified at his
deposition that in October 2011, Flynn said she had to watch him
to make sure that he provided the urine sample.6
(Pl.’s Dep. Tr.
Plaintiff alleges that when he brought this to
Rice’s attention, she said, “[i]t is [Flynn’s] job as Safety
Supervisor to make sure there is no cheating in the urine sample.”
(Pl.’s Dep. Tr. 215:25-215:4.)
First, it is worthy of note that
Plaintiff concedes Flynn did not ultimately observe his drug test.
(Pl.’s Dep. Tr. 216:3-218:3.)
Plaintiff requested that a man
supervise his test and after Rice directed him to Human Resources,
Plaintiff ultimately took the test in a mobile unit supervised by
(Pl.’s Dep. Tr. 216:16-217:24.)
Second, while Flynn’s
behavior was certainly ill-advised, the record does not contain
evidence that would enable a reasonable juror to conclude that
this facially neutral incident was based on sex.
Even to the
extent that Flynn’s remark could be construed as having sexual
undertones--which Plaintiff does not allege--the Court finds that
this incident does not push the totality of Flynn’s conduct into
the realm of a hostile work environment.
Accordingly, Defendant’s motion for summary judgment on
Plaintiff’s hostile work environment claim is GRANTED.
need not determine Defendant’s Faragher/Ellerth defense in the
It is unclear whether Plaintiff is alleging that Flynn
indicated she needed to “watch” Plaintiff inside the bathroom or
outside of the bathroom. (See Pl.’s Dep. Tr. 212:13-217:8.)
absence of any triable issues of fact regarding the underlying
hostile work environment claim.
(See Def.’s Br. at 7-11.)
Title VII Retaliation
plaintiff must demonstrate: “(1) participation in an activity
protected by federal discrimination statute; (2) the defendant was
aware of this activity; (3) an adverse employment action; and (4)
a causal connection between the alleged adverse action and the
Dall, 966 F. Supp. 2d at 192 (citations
utilized in analyzing a Title VII retaliation claim.
Baines, 593 F.3d 159, 164 (2d Cir. 2010).
First, Plaintiff must
demonstrate a prima facie retaliation claim.
At this stage,
his burden is “de minimis” and the Court’s role is “to determine
only whether proffered admissible evidence would be sufficient to
permit a rational finder of fact to infer a retaliatory motive.”
Id. (internal quotation marks and citation omitted).
plaintiff states a prima facie case, “a presumption of retaliation
arises” and the defendant must set forth a “legitimate, nonretaliatory
(internal quotation marks and citation omitted).
If the defendant
meets that burden, “the presumption of retaliation dissipates, and
the employee must show that retaliation was the ‘but-for’ cause of
the challenged employment action.”
Geller, 2013 WL 5348313, at *8
(quoting Univ. of Texas SW. Med. Ctr. v. Nassar, --- U.S. ----,
133 S. Ct. 2517, 2533, 186 L. Ed. 2d 503 (2013)).
The parties do not dispute that Plaintiff engaged in
protected activity that Defendant was aware of by complaining about
Flynn’s behavior in June 2011, August 2011, and February 2012.
causation in turn.
An adverse employment action, in the context of a Title
VII retaliation claim, is an action that “‘could well dissuade a
Vega v. Hempstead Union Free Sch. Dist., 801
F.3d 72, 90 (2d Cir. 2015) (quoting Burlington N. & Santa Fe Ry.
Co. v. White, 548 U.S. 53, 57, 126 S. Ct. 2405, 2409, 165 L. Ed.
2d 345 (2006)).
In White, the Supreme Court held that Title VII’s
retaliation provision is broadly applicable to “‘employer actions
that would have been materially adverse to a reasonable employee
or job applicant.’”
Hicks, 593 F.3d at 165 (quoting White, 548
U.S. 53 at 57, 126 S. Ct. at 2409).
The Second Circuit has
articulated several principles derived from the White decision:
(1) Title VII’s anti-retaliation provision is broader than its
related or employment-related retaliatory acts and harm’”; (2) the
requirement that the plaintiff demonstrate “material adversity”
preserves the principle that Title VII does not create a code of
general civility for the workplace; (3) although White sets forth
an objective standard, “‘context matters’”; and (4) allegations of
‘substantial in gross’ as to be actionable.”
Id. (quoting White,
548 U.S. at 67-69, 126 S. Ct. 2405).
The parties do not dispute that Plaintiff’s placement on
However, Plaintiff appears to argue that he suffered the
attempts to secure employment following his termination.
Br. at 13-14.)
The Court finds that these incidents do not
singularly or in the aggregate.
ultimately did not have to drive the defective bus, despite Rice
and/or Flynn’s June 2011 directive.
Plaintiff testified that a
mechanic brought him a working bus and Plaintiff used the working
bus to transport his passengers back to their workplace.
Dep. Tr. 88:14-22.)
The fact that Plaintiff’s concerns were
ultimately accommodated and he was not disciplined regarding this
reasonable employee from complaining about discrimination.
Second, Defendant’s alleged failure to investigate is
not an adverse action as it relates to the same complaints that
Plaintiff alleges constitute protected activities.
See Brayboy v.
O’Dwyer, 633 F. App’x 557, 558 (2d Cir. 2016)(“[a] failure to
investigate can be considered an adverse employment action only
‘if the failure is in retaliation for some separate, protected act
by the plaintiff’”) (quoting Fincher v. Depository Tr. & Clearing
Corp., 604 F.3d 712, 721 (2d Cir. 2010)).
constitutes an adverse action is another iteration of his argument
regarding Defendant’s alleged failure to investigate and fails for
the same reasons.
constitute an adverse employment action where, as here, the record
disciplinary process, is not materially adverse for purposes of a
retaliation claim”); Chacko v. Connecticut, No. 03-CV-1120, 2010
WL 1330861, at *13 (D. Conn. Mar. 30, 2010) (“[t]o qualify as an
adverse employment action, excessive scrutiny must be accompanied
Finally, the Court finds that Plaintiff has failed to
establish that Defendant’s alleged interference with Plaintiff’s
attempts to procure employment constitutes an adverse employment
“A plaintiff can state a claim for retaliation where a
previous employer gives a negative job reference, refuses to write
a recommendation, or otherwise sullies her reputation, thereby
damaging the employee’s future employment prospects.”
v. N. Shore-Long Island Jewish Health Sys., Inc., No. 13-CV-8583,
2015 WL 1515255, at *4 (S.D.N.Y. Apr. 2, 2015) (citation omitted).
Nevertheless, while Plaintiff’s burden at the prima facie stage is
“de minimis,” the record is bereft of any admissible evidence that
Defendant made statements to Plaintiff’s prospective employers.
See Blutreich, 2015 WL 1515255, at *4.
appears to be solely based on his unsupported allegation that
prospective employers from hiring Plaintiff by stating that he is
(Pl.’s 56.1 Counterstmt. ¶ 125.)
See Hicks, 593 F.3d
at 167 (“a party cannot create a triable issue of fact merely by
stating in an affidavit the very proposition they are trying to
The Court declines to find that Defendant’s conduct
constitutes an adverse action.
Accordingly, Plaintiff’s adverse
employment actions consist of his placement on administrative
leave and termination.
supports his prima facie case.
(Pl.’s Br. at 14-15.)7
Circuit has held that “[w]hile temporal proximity must be very
close, there is no bright line to define the outer limits beyond
which a temporal relationship is too attenuated to establish a
constitutional right and an allegedly retaliatory action.”
v. Dep’t of Pub. Safety, 764 F.3d 244, 254 (2d Cir. 2014) (internal
quotation marks and citations omitted).
Here, there was an
approximately seven-month gap between Plaintiff’s last sexual
Counterstmt. ¶ 102), and his placement on administrative leave in
The Court notes that Plaintiff’s brief focuses on the
previously noted incidents that do not constitute adverse
employment actions. (See generally Pl.’s Br. at 13-15.)
The temporal proximity between Plaintiff’s 2011 sexual
harassment complaints and his placement on administrative leave
in September 2012 is, of course, even more attenuated.
Plaintiff relies on Grant v. Bethlehem Steel Corp., 622
F.2d 43, 45-46 (2d Cir. 1980), and argues that in that case, the
Second Circuit held that an eight-month gap suggested a causal
(Pl.’s Br. at 14-15.)
While the Court acknowledges
that “seven months is within the temporal range that [the Second
causation,” Summa v. Hofstra Univ., 708 F.3d 115, 128 (2d Cir.
2013), the Court finds that Plaintiff has failed to state a prima
facie retaliation claim based on this seven-month time period in
the absence of any evidence of retaliatory animus.
Richardson v. Bronx Lebanon Hosp., No. 11-CV-9095, 2014 WL 4386731,
at *12 (S.D.N.Y. Sept. 5, 2014) (holding that the plaintiff failed
to establish causation based on a seven-month gap between the
protected activity and the retaliatory act in the “absence of any
evidence suggesting a causal connection”); Maxton v. Underwriter
Labs., Inc., 4 F. Supp. 3d 534, 547 (E.D.N.Y. 2014) (“district
courts within the Second Circuit have consistently held that the
passage of two to three months between the protected activity and
the adverse employment action does not allow for an inference of
proffered a non-retaliatory reason for its placement of Plaintiff
on administrative leave, referral for Section 75 Charges, and
ultimate termination of Plaintiff.
It is undisputed that on
September 14, 2012, Fasano contacted the Police Department and
subsequently, the Police Department contacted Rice and advised
“they had received a report regarding threats made by Plaintiff.”
(Def.’s 56.1 Stmt. ¶ 85; Pl.’s 56.1 Counterstmt. ¶¶ 79, 85.)
Thereafter, Plaintiff was referred for Section 75 Charges, and
after a hearing, the hearing officer recommended that Plaintiff’s
employment be terminated.
(Def.’s 56.1 Stmt. ¶¶ 90, 93-94.)
While Plaintiff alleges that Rice, Drucker, and Siegel
“were initially the impetus in the police involvement by advising
Counterstmt. ¶ 86), that assertion is unsupported and belied by
Supporting Deposition that states, in relevant part: “I was seeing
a patient by the name of Mihai Illinca [ ] during his therapy
session he indicated to me that he had 2 guns at home and could
take care of the problems himself.
He also made other delusional
statements which made me believe he is becoming increasingly
(Def.’s Ex. AA, Docket Entry 85-29.)
of the Police Department testified at Plaintiff’s Article 75
Hearing that on September 14, 2012, Fasano contacted him, stated
she was alarmed at Plaintiff’s comment during their session that
he “owned two handguns and he could take care of the matters
(Houghton Tr., Def.’s Ex. Y, Docket Entry 85-27,
Houghton testified that he subsequently called BOCES and inquired
about Plaintiff’s demeanor during the last few weeks.
Accordingly, Defendant’s motion for summary
judgment on Plaintiff’s Title VII retaliation claim is GRANTED.
The plaintiff establishes a prima facie FMLA retaliation
claim by demonstrating: “(1) [he] exercised rights protected under
the FMLA; (2) [he] was qualified for [his] position; (3) [he]
employment action occurred under circumstances giving rise to an
inference of retaliatory intent.”9
Serby v. N.Y. City Dep’t of
Educ., 526 F. App’x 132, 134 (2d Cir. 2013).
FMLA claims are
The parties do not dispute the first three
elements of Plaintiff’s FMLA claim.
However, Defendant argues
that Plaintiff cannot establish a causal connection between his
The Second Circuit has not yet determined whether the Supreme
Court’s decision in Nassar is applicable to FMLA retaliation
claims. Graziadio v. Culinary Inst. of America, 817 F.3d 415,
429 n.6 (2d Cir. 2016). This Court need not determine the
appropriate standard of causation. As set forth infra,
Plaintiff has failed to raise any genuine issues of material
fact under the less stringent “motivating factor” standard.
FMLA leave and his placement on administrative leave and ultimate
(Def.’s Br. at 20-22.)
The Court agrees.
Plaintiff argues that temporal proximity supports his
(Pl.’s Br. at 17.)
Plaintiff alleges that he took an
approximately thirty-day FMLA leave during June 2012, (Pl.’s 56.1
Counterstmt. ¶ 107); thus, there was an approximately three-month
gap between Plaintiff’s FMLA leave and his administrative leave.
Additionally, Plaintiff avers that a September 10, 2012, email
exchange between Rice and Drucker “about provoking Plaintiff to be
insubordinate by asking him to do something they knew he would be
evidences Defendant’s retaliatory intent.
(Pl.’s Br. at 17-18.)
Plaintiff also argues that the fact that the Article 75 Charges
“dated back six months to almost a year prior” also demonstrates
(Pl.’s Br. at 18.)
Assuming, arguendo, that Plaintiff has stated a prima
facie FMLA retaliation claim, as set forth above, Defendant has
Plaintiff on administrative leave.
However, the Court finds that
Plaintiff has not met his burden of demonstrating pretext.
The Court is not persuaded that the email exchange
September 10, 2012, Rice wrote an email to Drucker stating:
Hi Jeff, just a quick update. Rachael set the
groundwork for my meeting with Mihai Illinca.
She asked him a few questions and then stated
what we expected. He refused to do what we
wanted him to do because he will not drive on
the Southern State Parkway. How do you like
FYI--he drove on it this summer
(and last year for school).
(Pl.’s Ex. U, Docket Entry 88-21.)
Drucker responded as follows:
“Set up your meeting with him, but do it formally now.
up on it at this point.
Document the meeting that you directed
him to take that route and that he will be insubordinate if he
does not follow the directive.”
(Pl.’s Ex. U.)
These emails do
not reference Plaintiff’s FMLA leave or provide any indication
that Plaintiff’s FMLA leave was connected to Rice and Drucker’s
decision to schedule the meeting.
Even if Rice and Drucker were
“setting up” Plaintiff, as he alleges, (Pl.’s Br. at 18), there is
nothing in these emails or the record that connects Plaintiff’s
FMLA leave to Rice and Drucker’s alleged desire to have Plaintiff
Similarly, the fact that certain of the Article 75
Charges “date[ ] back six months to almost a year prior,” (Pl.’s
Br. at 18), does not establish pretext. While Plaintiff is correct
that certain of the Article 75 Charges relate to alleged misconduct
that occurred months before the September 2012 alleged threats,
none of these charges reference or otherwise relate to Plaintiff’s
(See Def.’s Ex. EE, Docket Entry 85-33.)
Parenthetically, the Court is also not persuaded that
the discrepancy between Rice’s deposition testimony that she was
September 20, 2012, email to Drucker referencing Fasano’s name and
Counterstmt. ¶¶ 113-114.)
Even assuming, arguendo, that Rice was
aware that Plaintiff was being treated by Fasano, Plaintiff has
decision to place him on administrative leave to his stress-related
Putting aside the question of whether the three-month
gap between Plaintiff’s FMLA leave and administrative leave is
sufficiently close in time to raise an inference of causation,
“[t]emporal proximity alone is insufficient to create a triable
issue of fact as to pretext.”
Barletta v. Life Quality Motor
Sales, Inc., No. 13-CV-2480, 2016 WL 4742276, at *5 (E.D.N.Y.
Sept. 12, 2016).
Accordingly, in the absence of any direct
evidence of discriminatory intent, Defendant’s motion for summary
judgment on Plaintiff’s FMLA retaliation claim is GRANTED.
[BOTTOM OF PAGE INTENTIONALLY LEFT BLANK]
summary judgment (Docket Entry 83) is GRANTED.
The Clerk of the
Court is directed to enter judgment accordingly and mark this case
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
29 , 2016
Central Islip, New York
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