Young v. Town of Islip et al

Filing 77

MEMORANDUM OF DECISION & ORDER granting in part and denying in part 75 Motion for New Trial. For the reasons stated above, the Plaintiff's motion is granted in part, and denied in part. It is granted to the extent that the Plaintiff will re ceive a retrial on her Title VII and NYSHRL retaliation claims. As to the retaliation claims, while the Court charged the jury only on the ultimate adverse employment act of termination, the Court should have charged the jury that they were to consid er whether there was a causal connection between the Plaintiff's complaints and those other adverse employment actions. It is denied to the extent that the Plaintiff does not receive a new trial on her Title VII, NYSHRL, SCHRL, Section 1981, or Section 1983 discrimination claims. Furthermore, as stated above, the SCHRL does not provide for a private right of action, so the Plaintiff will not receive a new trial on her SCHRL retaliation claims. The parties are directed to appear before the Court on December 4, 2017 at 9:00 a.m. for a conference to discuss the retrial of the Plaintiff's retaliation and Monell claims. SEE ATTACHED DECISION for details. It is SO ORDERED by Judge Arthur D. Spatt on 11/13/2017. (Coleman, Laurie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------X
MELANIE YOUNG,
Plaintiff,

MEMORANDUM OF
DECISION & ORDER
13-cv-4713 (ADS)(ARL)

-againstTOWN OF ISLIP, ELIZABETH LORENZ,
in her personal and official capacity, CAROL
CHARCHALIS, in her personal and official
capacity, and ROBERT FINNEGAN, in his
personal and official capacity
Defendants.
---------------------------------------------------------X

APPEARANCES:
Law Offices of Frederick K. Brewington
Attorneys for the Plaintiff
556 Peninsula Boulevard
Hempstead, NY 11550
By:
Frederick K. Brewington, Esq., Of Counsel
William D. Wexler, Esq.
Attorney for the Defendants
816 Deer Park Avenue
North Babylon, NY 11703
By:
William D. Wexler, Esq., Of Counsel
SPATT, District Judge:
On February 23, 2017, a jury found that the Plaintiff Melanie Young (the “Plaintiff”) did
not prove, by a preponderance of the evidence, that the Defendants Town of Islip (“Islip”),
Elizabeth Lorenz (“Lorenz”), Carol Charchalis (“Charchalis”), and Robert Finnegan (“Finnegan”)
(collectively, the “Defendants”) discriminated against her on the basis of her race, or that they
retaliated against her because of her complaints of discrimination. The Plaintiff’s claims were
brought pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq. (“Title VII), 42 U.S.C. § 1983 (“Section 1983”), 42 U.S.C. § 1981 (“Section 1981”), the New
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York State Human Rights Law, N.Y. EXEC. LAW § 296 (the “NYSHRL”), and the Suffolk County
Human Rights Law (the “SCHRL”).
Presently before the Court is a motion by the Plaintiff for a new trial pursuant to Federal
Rule of Civil Procedure (“FED. R. CIV. P.” or “Rule”) 59(a). Specifically, the Plaintiff argues that
the Court erred in its charge to the jury on what incidents could be considered materially adverse
employment actions in the context of the Plaintiff’s retaliation and discrimination claims.
For the following reasons, the Plaintiff’s motion is granted in part, and denied in part.
I. BACKGROUND
A. The Relevant Facts
The Court will not engage in a complete recitation of the facts adduced at the trial, just a
discussion of those that are relevant to the Plaintiff’s instant motion.
Between April 21, 2008, and December 31, 2013, the Plaintiff worked for the Town of
Islip. During that time, she worked in two offices: the Commissioner of Human Services for the
Town of Islip, and the Office of the Supervisor. Her respective titles in those two departments
were Executive Assistant to Management Staff/Acting Director of Human Development, and
Americans with Disabilities Act (“ADA”) Compliance Specialist.
The Plaintiff alleged that she was terminated from her position as ADA Compliance
Specialist due to discrimination based on her race, as well as retaliation based on her numerous
complaints of discrimination. The Plaintiff complained verbally and in writing in February 2009,
the spring of 2009, and October 2009 that she believed that she was the subject of discrimination.
In February 2009, she told the chief of staff to the Town supervisor that she was being subjected
to discriminatory treatment and a hostile work environment (Tr. at 139–40). On April 2, 2010, she
filed a notice of claim with the Town of Islip of her intent to bring discrimination charges. (Pl.’s

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Ex. 461). On February 11, 2011, she filed a complaint with the New York State Division of Human
Rights (the “NYSDHR”). (Pl.’s Ex 57).
As stated above, the Plaintiff moves for a new trial on the ground that the Court erred in
charging the jury that the only materially adverse employment action was the Plaintiff’s
termination.
During the charging conference, the Plaintiff objected to the Plaintiff’s termination being
the only materially adverse employment action in the retaliation context.

The following

conversation occurred:
MR. BREWINGTON: You say in those charges, including going back to five [the
retaliation cause of action], you say “based on alleged discrimination and the
decision to discharge her.” Is it the decision, or is it leading to her discharge?
THE COURT: No. I think that it’s a decision. I don’t know how it could be leading
to her. This is retaliation. The claim is that because she made prior complaints she
was discharged.
MR. BREWINGTON: That’s the ultimate.
THE COURT: Yes.
MR. BREWINGTON: That’s the ultimate. But the claim is that the retaliation came
in other forms, that the retaliation came in the over documentation, the charges, the
other actions. The retaliation itself does not have to be a single act. And that's my
concern. I was raising that the other –
THE COURT: I understand it was a single act.
MR. BREWINGTON: I know. It doesn’t have to--and it shouldn’t-- in this situation
our argument has been that she was discharged, and that was the ultimate action of
retaliation after she filed her complaints. But all of the things leading up to that
were actions of retaliation for which the defendants are responsible.
THE COURT: No way. They’re responsible for discharging her. There is not
interim retaliation. There’s no cause of action for interim retaliation in this case.
MR. BREWINGTON: Judge, each act of retaliation -- just so the record can be
heard out, each act of retaliation itself is actionable, just like each action of
discrimination.
THE COURT: Actionable do what?
MR. BREWINGTON: It's actionable -- because even though it may not have
caused her the financial impact of termination, each one of them caused her
emotional distress along the way. And that--and, Judge, I'm just asking you, and I
know you have your verdict sheet, but I think by telling this jury that the retaliation
can only be found if you're saying no matter what else they did, got an end in her
termination, the termination is a factor from retaliation. But the retaliation are acts
that occurred along the way, including things relating3

THE COURT: Can you imagine if I gave that to the jury what a mess this would
be? That’s not the law either. The law is there has to be a final act, which the
retaliation cautioned, not minor dispute, not aggravation, but something important
happened. Major, major.
No. I’m leaving it this way. You have an exception.
(Tr. at 2300–03).
In its charge to the jury, the Court identified the Plaintiff’s discharge as the only materially
adverse employment action for their consideration of the Plaintiff’s discrimination and retaliation
claims. (Tr. at 2478 (discrimination charge), 2487–88 (retaliation charge); Ct. Ex. 8 (verdict sheet)
at 1 (“Based on all of the evidence presented did the plaintiff Melanie Young prove that her race
was a motivating factor for the decision by the Town of Islip to discharge her?”); id. at 4 (“Did the
plaintiff Melanie Young prove that there was a causal connection between the prior complaints
based on alleged racial discrimination and the decision to discharge her?”)).
During trial, the Plaintiff introduced evidence of other allegedly adverse employment
actions. The Plaintiff was written up numerous times for insubordination and for being late. (See,
e.g., Pl.’s Exs. 524, 526, 545, 548, 550, 566). In January 2010, the Plaintiff was relieved of her
responsibilities regarding the planning of a Black History Month event. On March 15, 2010, the
Plaintiff was sent home without pay. (Pl.’s Ex. 77). On April 14, 2010, the Plaintiff was written
up for failing to comply with town codes. (Pl.’s Exs. 184, 310). The Plaintiff lost access to the
GPS monitoring of certain vans which she claimed she needed to perform her job. (Tr. at 272–75,
Pl.’s Ex. 179). When the Plaintiff took medical leave in the summer and fall of 2010, she testified
that the Defendants discussed her personal medical issues with her staff members. (Tr. at 283–
84). The Plaintiff also testified that the Defendants did not credit her with her full FMLA leave in
the fall and winter of 2010.

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B. Relevant Procedural History
On February 23, 2017, after a three-week trial, the jury found that Plaintiff did not prove,
by a preponderance of the evidence, that the Defendants were motivated by racial or retaliatory
animus when they fired the Plaintiff in violation of Title VII, Section 1981, Section 1983, the
NYSHRL, or the SCHRL. The jury also found that the Plaintiff did not prove, by a preponderance
of the evidence, that the individual Defendants violated her equal protection rights in contravention
of Section 1983. While the jury found that the Plaintiff did not meet her burden in demonstrating
that the Defendants Charchalis and Lorenz violated the FMLA, the jury found that the Plaintiff did
meet her burden in proving that the Defendants Islip and Finnegan violated the FLMA. Also,
while the jury found that the Plaintiff did not meet her burden in demonstrating that she was
subjected to racial discrimination and/or retaliatory treatment as a result of an official custom or
policy on the part of the Defendant Islip, the jury was unable to reach a unanimous verdict on the
Plaintiff’s Section 1983 Monell claim based on Islip’s alleged failure to train its employees.
Finally, the jury found that the Plaintiff did not prove, by a preponderance of the evidence, that
she was subjected to a hostile work environment in violation of Title VII, the NYSHRL, the
SCHRL, Section 1981 and Section 1983.
On April 13, 2017, the Plaintiff filed the instant motion for a new trial on her Title VII,
Section 1981, Section 1983, NYSHRL, and SCHRL claims.
II. DISCUSSION
A. The Relevant Legal Standard
Rule 59 provides that “[t]he court may, on motion, grant a new trial on all or some
issues . . . after a jury trial, for any reason for which a new trial has heretofore been granted in an
action at law in federal court[.]” FED. R. CIV. P. 59(a).

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“Erroneous or inadequate jury instructions may constitute grounds for a new trial, provided
the errors are ‘prejudicial in light of the charge as a whole.’” Graham v. City of N.Y., 128 F. Supp.
3d 681, 709 (E.D.N.Y. 2015) (quoting Lore v. City of Syracuse, 670 F.3d 127, 156 (2d Cir. 2012)).
An erroneous jury instruction “misleads the jury as to the correct legal standard or does not
adequately inform the jury on the law.” Lore, 670 F.3d at 156 (quoting Perry v. Ethan Allen, Inc.,
115 F.3d 143, 153 (2d Cir. 1997)); see also Turley v. ISG Lackawanna, Inc., 774 F.3d 140, 152
(2d Cir. 2014); Worytko v. Cty. of Suffolk, 285 F. App’x 794, 795 (2d Cir. 2008) (“Where the
court’s instruction misleads the jury as to the correct legal standard or where it fails to adequately
inform the jury on the law, it will be deemed erroneous. An erroneous jury instruction mandates
a new trial unless the error is harmless.” (quoting Cobb v. Pozzi, 363 F.3d 89, 112 (2d Cir. 2004))).
An error in a jury instruction is not prejudicial “when [the court is] persuaded it did not influence
the jury’s verdict.” Townsend v. Benjamin Enters., Inc., 679 F.3d 41, 56 (2d Cir. 2012). “An
omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the
law.” Lore, 670 F.3d at 156 (quoting Henderson v. Kibbe, 431 U.S. 145, 155, 97 S. Ct. 1730, 52
L. Ed. 2d 203 (1977)). A new trial is not warranted if the instructions “read as a whole, presented
the issues to the jury in a fair and evenhanded manner.” Turley, 774 F.3d at 152 (quoting Lore,
670 F.3d at 156).
B. The Relevant Law
1. Materially Adverse Employment Actions in the Discrimination Context
Materially adverse employment actions in the discrimination context must change the
terms and conditions of employment. See Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72,
85 (2d Cir. 2015) (“A plaintiff sustains an adverse employment action if he or she endures a
materially adverse change in the terms and conditions of employment.” (quoting Galabya v. N.Y.C.

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Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000)). “Examples of materially adverse changes include
termination of employment, a demotion evidenced by a decrease in wage or salary, a less
distinguished title, a material loss of benefits, significantly diminished material responsibilities, or
other indices unique to a particular situation.” Id.
Discrimination claims brought pursuant to Section 1981, Section 1983, and the NYSHRL
are analyzed under the same standards as under Title VII. See Vill. of Freeport v. Barrella, 814
F.3d 594, 607 (2d Cir. 2016) (“[W]e analyze claims of racial discrimination identically under Title
VII and § 1981 . . . .”); Vega, 801 F.3d at 88 (“Once the color of law requirement is met, a
plaintiff’s equal protection claim parallels h[er] Title VII claim . . . .”); Salamon v. Our Lady of
Victory Hosp., 514 F.3d 217, 226 fn. 9 (2d Cir. 2008) (We treat Title VII and [the NYSHRL]
discrimination claims as analytically identical, applying the same standards of proof to both
claims.”). However, the Court notes that in charging the jury in this case on the Plaintiff’s Section
1983 equal protection claim, the Court did not confine the jury’s consideration to the Plaintiff’s
termination. Instead, the Court asked the jury to consider whether the Plaintiff was treated
differently from other similarly situated individuals during the course of her employment. (Tr. at
2501–06).

That is, the jury considered the totality of the circumstances of the Plaintiff’s

employment.
The Court also notes that while it charged the jury that the same standards apply to the
SCHRL, it appears that the SCHRL does not afford a private right of action. See Gerardi v.
Huntington Union Free Sch. Dist., 124 F. Supp. 3d 206, 230 (E.D.N.Y. 2015) (“The Court has []
been unable to identify any provision of the SCHRL that allegedly gives the Plaintiff a private
right of action.” (citing Broomer v. Huntington Union Free Sch. Dist., No. 12 CV
574(DRH)(AKT), 2013 WL 4094924, at *7 (E.D.N.Y. Aug. 13, 2013)).

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2. Materially Adverse Employment Actions in the Retaliation Context
In Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S. Ct. 2405, 165 L. Ed. 2d
345 (2006), the Supreme Court clarified a plaintiff’s burden in demonstrating whether an
employment action was materially adverse in the retaliation context. The Court held that “a
plaintiff must show that a reasonable employee would have found the challenged action materially
adverse, which in this context means it well might have dissuaded a reasonable worker from
making or supporting a charge of discrimination.” Id. at 68, 126 S. Ct. at 2415 (internal citations
and quotation marks omitted); see also Kessler v. Westchester Cty. Dep’t of Soc. Servs., 461 F.3d
199, 207 (2d Cir. 2006) (noting that Burlington N. announced a different standard of material
adversity than that previously employed in this Circuit in, for example, Williams v. R.H. Donnelley,
Corp., 368 F.3d 123, 128 (2d Cir. 2004)).
However, the Supreme Court reiterated that “those petty slights or minor annoyances that
often take place at work and that all employees experience” are not materially adverse. Id. at 68;
see also id. (“We speak of material adversity because we believe it is important to separate
significant from trivial harms. Title VII, we have said, does not set forth a general civility code for
the American workplace.” (internal citations and quotation marks omitted)). Said differently,
“[t]he requirement of a materially adverse employment action reflects the principle that ‘Title VII
does not protect an employee from all retaliation, but only retaliation that produces an injury or
harm.’” Rivera v. Rochester Genesee Reg'l Transp. Auth., 743 F.3d 11, 24–25 (2d Cir. 2014)
(quoting Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556, 569 (2d Cir. 2011)).
The Supreme Court in Burlingon N. also directly addressed the difference between
materially adverse employment actions in the discrimination and retaliation contexts:
Title VII’s substantive provision and its antiretaliation provision are not
coterminous. The scope of the antiretaliation provision extends beyond workplace8

related or employment-related retaliatory acts and harm. We therefore reject the
standards applied in the Courts of Appeals that have treated the antiretaliation
provision as forbidding the same conduct prohibited by the antidiscrimination
provision and that have limited actionable retaliation to so-called “ultimate
employment decisions.”
548 U.S. at 67.
Therefore, “the anti-retaliation provision of Title VII, unlike Title VII’s substantive
provision, is not limited to discriminatory actions that affect the terms and conditions of
employment.” Kessler, 461 F.3d at 207 (citing Burlington N., 548 U.S. at 64 (alterations and
internal quotation marks omitted; emphasis in original)).
Relevant here, “in determining whether conduct amounts to an adverse employment action,
the alleged acts of retaliation need to be considered both separately and in the aggregate, as even
minor acts of retaliation can be sufficiently ‘substantial in gross’ as to be actionable.” Hicks v.
Baines, 593 F.3d 159, 165 (2d Cir. 2010) (citing Zelnik v. Fashion Inst. of Tech., 464 F.3d 217,
227 (2d Cir. 2006) (“[T]his ridicule was considered a part of a larger campaign of harassment
which though trivial in detail may have been substantial in gross, and therefore was actionable.”
(internal quotation marks omitted))).
NYSHRL retaliation claims are generally governed by the same standards as Title VII
claims. Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 609 (2d Cir. 2006).
Again, as stated above, although the Court charged the jury that SCHRL retaliation claims
are analyzed in the same way as Title VII claims, it appears that the SCHRL does not afford a
private right of action. See Gerardi, 124 F. Supp. 3d at 230 (citing Broomer, 2013 WL 4094924,
at *7).

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C. Application to the Facts
The Court finds that it did err in the charges submitted to the jury on the Plaintiff’s
retaliation claims. As stated above, an adverse employment action in the retaliation context is
something that “might have dissuaded a reasonable worker from making or supporting a charge of
discrimination.” Burlington N., 548 U.S. at 68. Furthermore, alleged acts of retaliation need to be
considered both separately and in the aggregate. Hicks, 593 F.3d at 165.
In this case, the Court did not permit the jury to consider whether the actions taken against
the Plaintiff in the aggregate might have dissuaded her from supporting her charges of
discrimination. The Plaintiff introduced evidence that she was given written reprimands; was sent
home without pay on one occasion; had a reduction in responsibilities; did not receive information
vital to her job performance; and lost her health insurance earlier than she should have.
Several of these have been held by courts to be sufficient on their own as materially adverse
employment actions. See Kessler, 461 F.3d at 205 (stating that discipline, suspension, being
written up, or issued an unsatisfactory evaluation are traditional indices of adverse employment
action amounting to retaliation); Mitchell v. SUNY Upstate Med. Univ., 243 F. Supp. 3d 255, 279
(N.D.N.Y. 2017) (collecting cases stating that unpaid suspension constitutes adverse employment
action in the retaliation context); Bowen-Hooks v. City of New York, 13 F. Supp. 3d 179, 227
(E.D.N.Y. 2014) (collecting cases that stand for the proposition that a write up, “even when the
letter does not directly or immediately result in any loss of wages or benefits, and does not remain
in the employment file permanently,” is an adverse employment action for the purposes of a
retaliation claim); St. Juste v. Metro Plus Health Plan, 8 F. Supp. 3d 287, 326 (E.D.N.Y. 2014)
(holding that an employer’s requirement that an employee take unpaid leave instead of receiving
benefits due was an adverse employment action in the retaliation context); see also Collazo v. Cty.

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of Suffolk, 163 F. Supp. 3d 27, 53 (E.D.N.Y. 2016) (finding that the plaintiff “raised triable issues
of fact as to whether the withholding of documents, stripping of responsibilities, hostility,
assignment to an isolated cubicle, failure to receive a multiline telephone, and malfunctioning
security badge constitute adverse actions” for the purposes of her retaliation claim).
Some of the complained of activities have been found to be insufficient by other courts.
Mitchell, 243 F. Supp. at 255, 285–86 (stating that, even in the retaliation context, “[e]xcessive
scrutiny, criticism, and negative evaluation of an employee’s work are not materially adverse
employment actions unless such conduct is accompanied by negative consequences, such as
demotion, diminution of wages, or other tangible loss.” (internal citations and quotation marks
omitted)); Jaeger v. N. Babylon Union Free Sch. Dist., 191 F. Supp. 3d 215, 235 (E.D.N.Y. 2016)
(“[T]he caselaw does not support the conclusion that Principal Klomp’s monitoring of Jaeger's
attendance, even if it differed from the scrutiny given to his colleagues, is sufficient to constitute
an adverse employment action.”).
Therefore, in view of the cases cited above, instead of merely asking the jury whether
retaliation was the but-for cause of the Plaintiff’s termination, the Court should have asked the
jury to also consider whether retaliation was the but for cause of the other aggregated alleged
adverse employment actions taken against the Plaintiff.
However, the Court does not find that it so erred in its discrimination charge. As stated
above, the standard for a materially adverse employment action in the discrimination context is
more stringent that that in the retaliation context. That is, a materially adverse employment action
must change the terms and conditions of the plaintiff’s employment. Vega, 801 F.3d at 85. None
of the other adverse employment actions complained of by the Plaintiff changed the conditions of
her employment. See Bowen-Hooks, 13 F. Supp. 3d at 212 (stating that in the discrimination

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context, “courts in this circuit have found that reprimands, threats of disciplinary action and
excessive scrutiny do not constitute adverse employment actions in the absence of other negative
results such as a decrease in pay or being placed on probation” (quoting Uddin v. City of New York,
427 F. Supp. 2d 414, 429 (S.D.N.Y. 2006)); see also Wharton v. Cty. of Nassau, No. 10–CV–0265,
2013 WL 4851713, at *8 (E.D.N.Y. Sept. 10, 2013) (“[O]ral and written warnings do not amount
to materially adverse conduct.” (quoting Chang v. Safe Horizons, 254 F. App’x 838, 839 (2d
Cir. 2007))).
While it is true that courts in this circuit have instructed juries to consider employment
actions in the aggregate in the discrimination context, see Olsen v. Cty. of Nassau, 615 F. Supp.
2d 35, 41–42 (E.D.N.Y. 2009) (collecting cases), the Second Circuit has not ruled on the validity
of such an interpretation of the statute and case law, id. In Olsen, the Court had charged the jury
that they could consider the adverse employment actions in the aggregate when determining
whether they were material. Id. at 40–41. In determining a motion for a new trial filed by the
defendants, the Olsen court held that it was not error to allow the jury to consider the adverse
employment actions in the aggregate. Id. at 42–43. Olsen, as well as three of the cases cited in
Olsen, relied upon the Second Circuit’s decision in Phillips v. Bowen, 278 F.3d 103 (2d Cir. 2002),
which was a case concerning First Amendment retaliation. In Phillips, the Second Circuit implied
that lesser employment actions added together could constitute materially adverse employment
action in the First Amendment context. This Court does not agree with the reasoning of Olsen or
the cases cited by Olsen because Phillips is inapplicable here. The “standard for First Amendment
retaliation claims has always been the equivalent to the standard set forth in Burlington N.” Zelnik,
464 at 227. That is, the First Amendment retaliation standard is more similar to the Title VII
retaliation standard than the Title VII discrimination standard. As stated above, the Title VII

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discrimination standard is more stringent. Therefore, in the absence of direct guidance from the
Second Circuit on the issue, the Court declines to follow the reasoning of Olsen and finds that it
did not commit error when it declined to charge the jury to consider the other employment actions
in the aggregate for her discrimination claims.
Nevertheless, even if the Court were to consider the adverse employment actions in the
aggregate, the Court finds that they were not material. That is because actions that did not affect
the terms of the Plaintiff’s employment individually, and similarly, did not affect the terms of her
employment in the aggregate. See, e.g., Tepperwien, 663 F.3d at 572 (“Individually the actions
were trivial, and placed in context they remain trivial. Taken in the aggregate, the actions still did
not adversely affect [the plaintiff] in any material way. Zero plus zero is zero.” (citing, inter alia,
Gorence v. Eagle Food Ctrs., Inc., 242 F.3d 759, 763 (7th Cir. 2001) (“And it is simply not true,
we want to emphasize, that if a litigant presents an overload of irrelevant or nonprobative facts,
somehow the irrelevances will add up to relevant evidence of discriminatory intent. They do not;
zero plus zero is zero.” (further citations and quotation marks omitted)))).
Furthermore, even if the Court erred in not instructing the jury to consider the actions in
the aggregate, the error is harmless. First, on the Plaintiff’s Title VII discrimination claim, the
Court instructed the jury to consider “any evidence of [discriminatory] intent that may be available
from the evidence that has been presented by both sides.” (Tr. at 2479). More importantly, the
Plaintiff’s argument is essentially that although the jury found that the Defendants were not
motivated by discriminatory animus when they terminated her, they were motivated by that animus
when they documented her alleged insubordination; “berated” her in front of staff; took away her
planning of Black History Month; and failed to investigate her claims of discrimination.

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The Court does not agree with the Plaintiff’s argument. Surely, if the Defendants were
motivated by discrimination in all of the other actions taken against the Plaintiff, the jury would
have found that the Defendants were so motivated when they terminated the Plaintiff. Instead, the
jury found that the Plaintiff did not prove, by a preponderance of the evidence, that the Defendants
were motivated by a racial animus when they terminated the Plaintiff. Furthermore, when the jury
took the totality of circumstances into account, it found that the Plaintiff had not met her burden
in proving that she had been treated differently than other similarly situated individuals, or that she
had been subjected to a hostile work environment. That is, after considering everything that
happened to the Plaintiff, the jury found that she was not the subject of discrimination and found
that she did not meet her burden on her equal protection claim. Therefore, any possible error
would have been harmless.
Therefore, the Plaintiff’s motion for a new trial on her retaliation claims is granted, but
her motion for a new trial on her discrimination claims is denied.
III. CONCLUSION
For the reasons stated above, the Plaintiff’s motion is granted in part, and denied in part.
It is granted to the extent that the Plaintiff will receive a retrial on her Title VII and NYSHRL
retaliation claims. As to the retaliation claims, while the Court charged the jury only on the
ultimate adverse employment act of termination, the Court should have charged the jury that they
were to consider whether there was a causal connection between the Plaintiff’s complaints and
those other adverse employment actions.
It is denied to the extent that the Plaintiff does not receive a new trial on her Title VII,
NYSHRL, SCHRL, Section 1981, or Section 1983 discrimination claims. Furthermore, as stated

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above, the SCHRL does not provide for a private right of action, so the Plaintiff will not receive a
new trial on her SCHRL retaliation claims.
The parties are directed to appear before the Court on December 4, 2017 at 9:00 a.m. for a
conference to discuss the retrial of the Plaintiff’s retaliation and Monell claims.
It is SO ORDERED:
Dated: Central Islip, New York
November 13, 2017
_____/s/ Arthur D. Spatt______
ARTHUR D. SPATT
United States District Judge

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