Hettiarachchi v. County of Suffolk et al
Filing
103
ORDER granting in part and denying in part 73 Motion for Summary Judgment --- For the reasons set forth in the ATTACHED WRITTEN OPINION AND ORDER, Defendants' motion for summary judgment is denied as to Plaintiff's Title VII race and nat ional origin discrimination claim against the DA's Office, and Section 1983 race and national origin discrimination claim against Suffolk County, Thomas J. Spota, Emily Constant, and Edward G. Heilig in their personal capacities. Defendants 9; motion for summary judgment is granted in all other respects. Accordingly, this action is dismissed in its entirety as to defendants Jablonski, McCormack, Kelly, Clifford and Chalifoux and the Clerk of the Court is directed to note the termination of these defendants only on the docket. This matter is referred to the magistrate judge for further pretrial proceedings, including settlement discussions. SO ORDERED by Judge Dora Lizette Irizarry on 9/30/2020. (Irizarry, Dora)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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RASHIKA N. HETTIARACHCHI,
:
:
Plaintiff,
:
:
-against:
:
COUNTY OF SUFFOLK, SUFFOLK COUNTY
:
DISTRICT ATTORNEY’S OFFICE, DISTRICT
:
ATTORNEY THOMAS J. SPOTA, in his individual and :
official capacity, CHIEF ASSISTANT DISTRICT
:
ATTORNEY EMILY CONSTANT, in her individual
:
and official capacity, DIVISION CHIEF EDWARD G. :
HEILIG, in his individual and official capacity,
:
BUREAU CHIEF EDWARD JABLONSKI, in his
:
individual and official capacity, BUREAU CHIEF
:
MAUREEN MCCORMACK in her individual and
:
official capacity, BUREAU CHIEF KERRIANN
:
KELLY in her individual and official capacity,
:
DEPUTY BUREAU CHIEF NANCY CLIFFORD in
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her individual and official capacity, DEPUTY BUREAU :
CHIEF JAMES CHALIFOUX in his individual and
:
official capacity,
:
:
Defendants.
:
:
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OPINION & ORDER
14-cv-6731 (DLI) (SLB)
DORA L. IRIZARRY, United States District Judge:
Rashika N. Hettiarachchi (“Plaintiff”) filed this action against the County of Suffolk (the
“County”), the Suffolk County District Attorney’s Office (the “DA’s Office”), Thomas J. Spota,
Emily Constant, Edward G. Heilig, Edward Jablonski, Maureen McCormack, Kerriann Kelly,
Nancy Clifford, and James Chalifoux (the “Individual Defendants”) (all collectively,
“Defendants”), claiming that Defendants discriminated against her on the basis of her race, gender,
national origin, and disability in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e, as amended (“Title VII”); 42 U.S.C. § 1981 (“Section 1981”); 42 U.S.C. § 1983 (“Section
1983”); the Americans With Disabilities Act, 42 U.S.C. § 12101 (“ADA”); and the New York
State Human Rights Law, N.Y. Exec. Law § 296. Plaintiff has withdrawn some of her claims, and
others were dismissed in a January 25, 2016 opinion by the Hon. Joan M. Azrack, United States
District Judge, who then presided over this matter. See, Dkt. Entry Nos. 21, 29.
Before the Court is Defendants’ motion for summary judgment on Plaintiff’s remaining
causes of action: (1) a Title VII claim against the DA’s Office relating to Plaintiff’s termination;
(2) Section 1981 and 1983 claims against Suffolk County and the Individual Defendants, in their
personal and official capacities, relating to their failure to promote Plaintiff and for her termination;
and (3) ADA claims against the DA’s Office relating to Plaintiff’s termination. See, Defs. SJM,
Dkt. Entry Nos. 73–82. Plaintiff opposed Defendants’ motion. See, Opp., Dkt. Entry Nos. 83-86.
Defendants replied. See, Reply, Dkt. Entry Nos. 87–92.
For the reasons set forth below, Defendants’ motion for summary judgment is denied as to
Plaintiff’s Title VII race and national origin discrimination claim against the DA’s Office, and
Section 1983 race and national origin discrimination claim against Suffolk County, Thomas J.
Spota, Emily Constant, and Edward G. Heilig in their personal capacities. Defendants’ motion for
summary judgment is granted in all other respects.
BACKGROUND
The material facts recounted below are taken from Defendants’ Local Rule 56.1 Statement
(“Def. 56.1 Stmt.,” Dkt. Entry No. 75), Plaintiff’s Local Rule 56.1 Statement (“Pl. 56.1 Stmt.,”
Dkt. Entry No. 84), Plaintiff’s Counter Statement of Facts 1 (“Pl. Counter 56.1 Stmt.,” Dkt. Entry
No. 84), and Defendants’ Reply to Plaintiff’s Counter Statement (“Def. Reply to Pl. Counter 56.1
1
Plaintiff’s Local Rule 56.1 Statement, which responds to each paragraph contained in Defendants’ Local Rule 56.1
Statement, and Plaintiff’s Counter Statement of Facts, which begins on page 36 of the same filing at Dkt. Entry No.
84, are filed as one document but are referred to as separate documents for the sake of clarity.
2
Stmt.,” Dkt. Entry No. 88). The facts are undisputed unless otherwise stated. As it must, the Court
has viewed the facts in the light most favorable to the nonmoving Plaintiff, considered only facts
recited by Plaintiff and Defendants in their respective Rule 56.1 statements and responses that are
established by admissible evidence and disregarded conclusory allegations and legal arguments
contained therein. See, Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001) (“where there
are no[ ] citations or where the cited materials do not support the factual assertions in the
[s]tatements, the Court is free to disregard the assertion.”) (internal citations omitted).
I.
Employment Chronology and Medical Leave
Plaintiff, a South Asian female originally from Sri Lanka, worked as an Assistant District
Attorney (“Assistant DA”) in the DA’s Office from October 11, 2005 until her termination on July
17, 2013. Compl. ¶ 10; Def. 56.1 Stmt. ¶¶ 1, 4, 29. During her tenure, Plaintiff worked in four
different bureaus, beginning in the District Court Bureau (“DCB”) from her date of hire to
September 23, 2010, where she was supervised by Bureau Chief Edward Jablonski (“Jablonski”).
Def. 56.1 Stmt. ¶ 13. Plaintiff then was transferred to the Case Advisory Bureau (“CAB”), again
supervised by Jablonski, until her promotion on October 2, 2012 to the Economic Crimes Bureau
(“ECB”).
Id. ¶ 14.
There, she was supervised by Bureau Chief Maureen McCormack
(“McCormack”) until her transfer on February 21, 2013 to the Major Crimes Bureau (“MCB”),
where she worked until her termination. Id. ¶ 16–17, 29. Plaintiff was supervised in the MCB by
Bureau Chief Kerriann Kelly (“Kelly”) and Deputy Bureau Chiefs Nancy Clifford (“Clifford”) and
James Chalifoux (“Chalifoux”). Id. ¶¶ 26–29.
Shortly after Suffolk County District Attorney Thomas J. Spota (“Spota”) transferred
Plaintiff to the ECB, Plaintiff suffered a mental breakdown and attempted suicide on November
16, 2012, which resulted in her taking a medical leave of absence from November 19, 2012 until
3
January 11, 2013. See, Deposition of Rashika Hettiarachchi (“Plaintiff Dep.”), Dkt. Entry No. 761, at 47:3–8; Def. 56.1 Stmt. ¶ 19, 24–25. Plaintiff was diagnosed with Bipolar II Disorder during
her medical leave. See, Plaintiff Dep. at 78:18–20.
DA’s Office policy required that, prior to returning from medical leave, an employee must
submit a letter from a doctor stating that s/he is able to perform his/her essential job functions.
Def. 56.1 Stmt. ¶ 23; Deposition of Edward G. Heilig 2 (“Heilig Dep.”), Dkt. Entry No. 86-7 at
69:20–70:7. On January 8, 2013, while Plaintiff was on medical leave, Chief Assistant District
Attorney Emily Constant (“Constant”), the second highest ranking official in the DA’s Office, sent
Plaintiff a letter outlining Plaintiff’s essential job functions and requesting that she supply the DA’s
Office with a doctor’s note confirming that she was healthy enough to perform them. Deposition
of Emily Constant (“Constant Dep.”), Dkt. Entry No. 85-7, at 125:11–21; Def. 56.1 Stmt. ¶¶ 22–
23. Constant could not recall making a similar request of another Assistant DA before January
2013, but did recall doing so after Plaintiff’s termination from the DA’s Office. Constant Dep. at
126:6–127:8. Plaintiff’s doctor provided the DA’s Office with the requested letter on January 10,
2013 and Plaintiff returned to her position the following day. Def. 56.1 Stmt. ¶¶ 24–25. Plaintiff
was hospitalized again briefly from February 20–24, 2019 after suffering from suicidal ideations.
Plaintiff Dep. at 153:1–154:3.
II.
Plaintiff’s Performance
The undisputed record reveals several instances of Plaintiff’s unsatisfactory performance
during her tenure with the DA’s Office. On one occasion, while working for the CAB, Plaintiff
declined to cover cases for a colleague in the DCB, where Plaintiff previously had worked.
2
Edward G. Heilig (“Heilig”) served as Division Chief, the third ranking position in the DA’s Office, and he was in
charge of administrative matters during Plaintiff’s employment with the DA’s Office. Heilig Dep. at 9:9–10:16.
4
Plaintiff stated that she had done her time in the DCB and would not cover for attorneys in that
Bureau. She later apologized for this action. Def. 56.1 Stmt. ¶ 31; Plaintiff Dep. 163:24–164:7.
During Plaintiff’s tenure in the ECB, McCormack requested that Plaintiff handle several
cases for an Assistant DA in another bureau who was on leave. Plaintiff did so, but told
McCormack upon returning from court that she did not see why she should have to cover cases
from another bureau when Assistant DAs from that bureau were present in court. Def. 56.1 Stmt.
¶¶ 43–44; Plaintiff Dep. 175:19–176:9.
After her transfer to the MCB in February 2013, Plaintiff had a conflict with a Senior
Assistant DA with whom she was working on a case. Plaintiff claims that the Senior Assistant
DA made disparaging comments about the victims in a particular case. Pl. 56.1 Stmt. ¶ 50.
Following a conversation with Chalifoux, in which he told Plaintiff that she should work together
with others in the Bureau, Plaintiff was reassigned from the case. Id. ¶ 52.
At one point during her tenure in the MCB, Plaintiff advised Kelly that she had been
informed by a Legal Aid attorney that another Assistant DA had coerced a confession from a
defendant. Def. 56.1 Stmt. ¶ 56. The extent and nature of Plaintiff’s inquiry into the accusation
is disputed, but Kelly advised Plaintiff that, in the future, she should not discuss unsubstantiated
allegations against an Assistant DA with the Assistant’s colleagues and immediately should report
suspected inappropriate conduct to her supervisor. Id. ¶¶ 59, 63. In response, Plaintiff maintained
that she had acted appropriately and no change in her conduct was needed. Id. ¶ 64.
In or around May 2013, Plaintiff and Kelly discussed a potential legal issue concerning
another prosecutor’s instructions to a grand jury. Kelly directed Plaintiff to research whether there
was a problem with the prosecutor’s statements to the grand jury, but stated that the sufficiency of
the prosecutor’s instruction was an issue for the court to decide and that Plaintiff need not point
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out the issue to the court. Def. 56.1 Stmt. ¶¶ 80–81; Deposition of Kerriann Kelly (“Kelly Dep.”),
Dkt. Entry No. 85-20, at 59:8–16. After Plaintiff submitted the grand jury minutes to the court,
Kelly asked her if she had said anything to court personnel regarding the minutes. Plaintiff told
Kelly that she had not spoken to the court regarding the grand jury minutes, when, in fact, she had
told the judge’s law clerk to review them thoroughly. Plaintiff Dep. at 217:15–218:17. Plaintiff
also told counsel for the defendant who was the subject of the grand jury presentation that “there
might be issues in the case and that maybe we can work out a deal.” Id. at 216:21–25.
Plaintiff later met with Kelly and Chalifoux and admitted that she had been dishonest with
them regarding her interaction with the judge’s law clerk. Plaintiff Dep. at 218:14–17. Kelly and
Chalifoux informed Plaintiff that her actions created a trust issue between them and Plaintiff. Id.
at 218:22–25. Plaintiff conceded during her deposition that she understood it was up to the court
to decide whether the prosecutor’s instruction was sufficient, but that she was being “asked to
violate ethics where [she] thought there was something wrong.” Id. at 220:15–16. The judge in
the case ultimately found that the instructions to the grand jury were insufficient and ordered the
matter re-presented to the grand jury. Kelly Dep. at 44:11–22.
In another instance, on or around June 11, 2013, two detectives complained to Clifford that
Plaintiff had not prepared them adequately for a hearing regarding the burglary of a police officer’s
house. Def. 56.1 Stmt. ¶ 95; Plaintiff Dep. at 226:25–227:5. Plaintiff began preparing the officers
for their testimony at 11:00 a.m. for a 2:00 p.m. hearing the same day. Def. 56.1 Stmt. ¶ 97. The
officers told Clifford that they did not want to testify at the hearing because they felt unprepared
and the DA’s Office consequently requested an adjournment of the hearing to allow for additional
time to prepare the officers. Id. ¶¶ 98–99.
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III.
Performance Evaluations
In early 2013, Spota requested that evaluations be prepared for all Assistant DAs based on
their performance from the beginning of 2012 to the time of evaluation. Id. ¶¶ 115–16. During
this time period, Plaintiff had worked in both the CAB, where Jablonski was her supervisor, and
the ECB, where McCormack was her supervisor. See, Id. ¶ 118. The DA’s Office had not
conducted performance evaluations prior to 2013 and they have not been conducted since 2013.
Heilig Dep. at 21:22–22:5. 3
On February 26, 2013, Jablonski completed an evaluation of Plaintiff’s work at the CAB
from January 1, 2012 through October 2, 2012.
See, Evaluation of Rashika Hettiarachchi
(“Jablonski Eval.”), Dkt. Entry No. 85–15. The evaluation form lists a variety of areas in which
to assess work performance on a scale from “1” or “unacceptable” to “5” or “exceptional.” In the
areas of “interaction with support staff” and abilities as a “team player,” Jablonski rated Plaintiff
as a “2” or “need[ing] improvement.” Jablonski gave Plaintiff a rating of “4” or “very good,” in
10 of the 22 areas in which she was evaluated, including “ethical obligations,” “witness
contact/interaction,” “ability to assess legal and factual issues,” “preparation for court,” and “grand
jury ability.” Jablonski rated Plaintiff at “3” or “average” in the remaining areas of evaluation and
gave her performance at the CAB an “average” grade overall. Jablonski did not award an overall
score of exceptional to any Assistant DA. Deposition of Edward Jablonski (“Jablonski Dep.”),
Dkt. Entry No. 86-5, at 37:13–20.
McCormack, who had supervised Plaintiff for approximately three months in the ECB from
October to November, 2012 and again following Plaintiff’s return from medical leave from
January to February, 2013, completed Plaintiff’s evaluation on or around May 14, 2013. Def. 56.1
3
At least as of the depositions in this case.
7
Stmt. ¶ 123. McCormack gave Plaintiff a score of “2” in 6 of the 13 areas in which she assigned
a score, and a score of “3” in 7 other areas.
See, Evaluation of Rashika Hettiarachchi,
(“McCormack Eval.”), Dkt. Entry No. 85-17. McCormack left more than half of the metrics listed
on the evaluation form blank and gave Plaintiff an overall score of “2” or “needs improvement.”
McCormack did not review the evaluation form with Plaintiff, even though she did so with
all other Assistant DAs for whom she completed evaluations. Deposition of Maureen McCormack
(“McCormack Dep.”), Dkt. Entry No. 86-6 at 104:6–21. McCormack attributes this to the fact
that Plaintiff no longer was working under her at the ECB at the time she completed Plaintiff’s
evaluation, unlike all the other attorneys for whom she completed evaluations. Id. Spota later
reviewed the evaluations with Constant and Heilig. Def. 56.1 Stmt. ¶ 125.
On May 20, 2013, Kelly provided Plaintiff with the evaluations prepared by Jablonski and
McCormack.
Plaintiff submitted a written response to each evaluation.
See, Response to
Evaluation by Bureau Chief Edward Jablonski (“Response to Jablonski”), Dkt. Entry No. 85-16;
Response to Evaluation by Bureau Chief Maureen McCormack (“Response to McCormack”) Dkt.
Entry No. 85-18. Plaintiff’s response to the Jablonski evaluation discussed her efforts to assist
other Assistant DAs and various workplace achievements, and noted that she never had been
spoken to regarding her interactions with support staff, an area in which Jablonski had indicated
that Plaintiff “need[ed] improvement.” See, Response to Jablonski. In her response to the
McCormack Evaluation, Plaintiff stated that McCormack’s Evaluation was “consistent with
[McCormack’s] hostility” to Plaintiff and that the evaluation was based on Plaintiff’s work for
McCormack for a period of approximately two months. See, Response to McCormack. Believing
some of Plaintiff’s statements in her response to be false, McCormack drafted a rebuttal and
provided it to Heilig. McCormack Dep. at 90:2–92:4. Spota was not made aware that Plaintiff
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responded to her evaluations. Deposition of Thomas J. Spota (“Spota Dep.”), Dkt. Entry No. 862, at 56:13–16. Heilig spoke with McCormack regarding Plaintiff’s response to her evaluation,
but did not speak with Plaintiff. Heilig Dep. at 92:8–21.
IV.
Plaintiff’s Termination
By later dated July 2, 2013, Spota advised Plaintiff that she would not be receiving a pay
increase on the basis of her performance and the recommendation of Kelly. Ex. BB, Letter from
Thomas J. Spota, Dkt. Entry No. 86-8. In his letter, Spota urged Plaintiff “to reflect upon those
areas of your performance that need improvement” and stated his hope that Plaintiff would “react
constructively to this situation and . . . strive to improve [her] performance moving forward.” Id.
Following conversations with Constant, Heilig, Clifford, Chalifoux, and Kelly, Spota decided to
terminate Plaintiff’s employment with the DA’s Office. Spota Dep. at 73:5–74:2. On July 16,
2013, two weeks after Plaintiff was informed she would not be receiving a pay increase, Constant
and Heilig informed Plaintiff that she was being terminated. Def. 56.1 Stmt. ¶ 135. Spota
identified Plaintiff’s “deceptive” and “dishonest” conduct as the “main reason” for her termination,
as well as her lack of understanding of criminal law and procedure, and her confrontational attitude
towards attorneys and staff within the DA’s Office. Spota Dep. at 74:7–77:13. Another Assistant
DA, a black female, was terminated shortly before Plaintiff on May 29, 2013. Pl. Counter 56.1
Stmt. ¶ 304.
LEGAL STANDARD
Summary judgment is appropriate when “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). No genuine issue of material fact exists “unless there is sufficient evidence favoring the
nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable,
9
or is not significantly probative, summary judgment may be granted.” Anderson v. Liberty Lobby,
477 U.S. 242, 249–50 (1986) (internal citations omitted).
“In ruling on a summary judgment motion, the district court must resolve all ambiguities,
and credit all factual inferences that could rationally be drawn, in favor of the party opposing
summary judgment.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir. 2007)
(internal quotations omitted). The moving party bears the burden of “informing the district court
of the basis for its motion, and identifying those portions of [the record] . . . which it believes
demonstrates the absence of a genuine issue of fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). Once the moving party has met its burden, “the nonmoving party must come forward with
‘specific facts showing that there is a genuine issue for trial.’” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e)). The nonmoving
party may not “rely simply on conclusory statements or on contentions that the affidavits
supporting the motion are not credible . . . or upon the mere allegations or denials of the nonmoving
party’s pleading.” Ying Jing Gan v. City of New York, 996 F.2d 522, 532–33 (2d Cir. 1993)
(internal citations omitted). “Summary judgment is appropriate only ‘[w]here the record taken as
a whole could not lead a rational trier of fact to find for the non-moving party.’” Donnelly v.
Greenburgh Cent. Sch. Dist. No. 7, 691 F.3d 134, 141 (2d Cir. 2012) (quoting Matsushita, 475
U.S. at 587).
When considering employment discrimination claims, the Second Circuit has cautioned
that a “trial court must be cautious about granting summary judgment to an employer when . . . its
intent is at issue” and that “affidavits and depositions must be carefully scrutinized for
circumstantial proof which, if believed, would show discrimination.” Desir v. City of New York,
453 F. App’x 30, 33 (2d Cir. 2011) (citing Gallo v. Prudential Residential Servs., Ltd. P’ship, 22
10
F.3d 1219, 1224 (2d Cir. 1994). Nonetheless, “it is beyond cavil that summary judgment may be
appropriate even in the fact-intensive context of discrimination cases.” Abdu–Brisson v. Delta Air
Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001).
DISCUSSION
I.
The Title VII and Sections 1981 and 1983 Termination Claims
Title VII of the Civil Rights Act of 1964 makes it unlawful “for an employer to fail or
refuse to hire or to discharge any individual, or otherwise to discriminate against any individual
with respect to his compensation, terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin[.]” 42 U.S.C. § 2000e-2(a)(1).
42 U.S.C. § 1983 provides that “[e]very person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured
in an action at law.” A plaintiff may bring Section 1983 claims against state officials in their
personal or official capacities, although Section 1983 claims against individuals in their official
capacities are, in reality, “a way of pleading an action against an entity of which an officer is an
agent.” Lore v. City of Syracuse, 670 F.3d 127, 164 (2d Cir. 2012) (quoting Monell v. Dep’t of
Soc. Servs., 436 U.S. 658, 691 n.55 (1978)).
The Supreme Court has held, and the Second Circuit recently affirmed, that the express
cause of action for damages created by Section 1983 constitutes the “exclusive federal remedy”
for the violation of rights under Section 1981. As such, Plaintiff’s Section 1981 claims are
dismissed. See, Duplan v. City of New York, 888 F.3d 612, 619 (2d Cir. 2018) (quoting Jett v.
11
Dallas Indep. School Dist., 491 U.S. 701 (1989)); See also, Edwards v. Town of Huntington, 2007
WL 2027913, at *3 (E.D.N.Y. July 11, 2007).
Employment discrimination claims against employers under Title VII and against
individual defendants under 42 U.S.C. § 1983 generally are analyzed under the same framework.
See, Bowen-Hooks v. City of New York, 13 F. Supp.3d 179, 209 (E.D.N.Y. 2014) (citing St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993)); See also, Vega v. Hempstead Union Free Sch.
Dist., 801 F.3d 72, 82 (2d Cir. 2015) (holding in the Fed. R. Civ. P. 12(b)(6) context that a Section
1983 “equal protection claim parallels [a plaintiff’s] Title VII claim”). That framework is the
three-step, burden shifting scheme articulated by the Supreme Court in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802–03 (1973). At the first step in the analysis, a plaintiff must establish
a prima facie case of discrimination by demonstrating: (1) membership in a protected class; (2)
qualifications for the position; (3) an adverse employment action; and (4) that the adverse
employment action occurred under circumstances giving rise to an inference of discrimination.
See, Collins v. New York City Transit Auth., 305 F.3d 113, 118 (2d Cir. 2002). Plaintiff’s burden
in establishing her prima facie case is minimal. Id. (citing McGuinness v. Lincoln Hall, 263 F.3d
49, 53 (2d Cir. 2001)).
If a plaintiff succeeds in satisfying these elements, the burden shifts to the defendant to
produce admissible evidence that the adverse employment action was undertaken for a legitimate,
non-discriminatory reason. See, Hicks, 509 U.S. at 506–07 (citing Texas Dep’t of Community
Affairs v. Burdine, 450 U.S. 248, 254 (1981)).
Upon this showing by the defendant, the
presumption of discrimination created by plaintiff’s prima facie case “drops out of the picture”
and plaintiff must “prove by a preponderance of the evidence that the legitimate reasons offered
by the defendant were not its true reasons, but were a pretext for discrimination.” Reeves v.
12
Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000) (internal quotations omitted). While
often referred to as the “pretext” stage of the analysis, a plaintiff “sustains his burden if he proves
that an adverse employment decision was motivated by discrimination, regardless of whether he
is able to additionally show that the employer’s asserted justification for the decision was
‘pretextual.’” Henry v. Wyeth Pharms., Inc., 616 F.3d 134, 156 n.5 (2d Cir. 2010).
A. Plaintiff’s Prima Facie Case
1. Qualifications for the Position
Defendants do not contest that Plaintiff, a South Asian female, is a member of a protected
class. However, they do contend that Plaintiff cannot satisfy the second element of a prima facie
case of discrimination “because she was not performing her job satisfactorily.” Defendants’
Memorandum in Support of Motion for Summary Judgment (“Mem.”), Dkt. Entry No. 74, at 18.
To support their contention, Defendants rely on reports of Plaintiff’s poor job performance from
supervisors, fellow prosecutors, witnesses, victims, and a judge. Id.
On this issue, Defendants have applied an incorrect legal standard, erroneously relying on
Meiri v. Dacon, 759 F.2d 989, 995 (2d Cir. 1985) and Thornley v. Penton Publ’g, 104 F.3d 26, 29
(2d Cir. 1997) to support their preferred “satisfactory performance” test. See, Mem. at 18.
However, the Second Circuit subsequently clarified that a plaintiff bears a “minimal” burden of
demonstrating qualifications for a position at the prima facie stage, and is required to show only
that she “possesses the basic skills necessary for performance of [the] job.” Slattery v. Swiss
Reinsurance Am. Corp., 248 F.3d 87, 92 (2d Cir. 2001); See also, Markovich v. City of New York,
2013 WL 11332465, at *5 (E.D.N.Y. Aug. 21, 2013), aff’d, 588 F. App’x 76 (2d Cir. 2015) (stating
that courts in the Second Circuit now reject the “satisfactory performance” requirement). “[A]ll
13
that is required is that the plaintiff establish basic eligibility for the position at issue, and not the
greater showing that [s]he satisfies the employer.” Slattery, 248 F.3d at 92.
Here, Plaintiff meets the minimal burden of showing that she was qualified for the roles
she occupied in the DA’s Office. Plaintiff was an Assistant DA for nearly eight years before her
termination, during which time she received promotions and handled progressively more complex
matters.
See, Memorandum in Opposition to Defendants’ Motion for Summary Judgment
(“Opp’n”), Dkt. Entry No. 83, at 7. Plaintiff’s tenure with and promotions within the DA’s Office,
coupled with a performance review identifying Plaintiff as an “average” performer in most
categories of her employment are sufficient to demonstrate Plaintiff’s qualification for
employment as an Assistant DA for purposes of her prima facie case. See, Slattery, 248 F.3d at
92 (“[W]here discharge is at issue and the employer has already hired the employee, the inference
of minimal qualification is not difficult to draw.”).
2. Inference of Discriminatory Intent
Defendants concede that Plaintiff’s termination constitutes an adverse employment action.
Thus, the remaining question is whether Plaintiff sufficiently has alleged that her termination was
the result of discriminatory intent.
As with the “qualifications” prong of the prima facie case, at this stage Plaintiff must meet
a “low threshold” to show that the decision to terminate her was made under circumstances giving
rise to an inference of discrimination. Holcomb v. Iona Coll., 521 F.3d 130, 139 (2d Cir. 2008).
Courts may consider a variety of circumstantial evidence in evaluating whether a plaintiff has met
her burden because employers are “unlikely to leave a ‘smoking gun’ attesting to a discriminatory
intent[.]” Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). Discrimination may
be inferred from “the more favorable treatment of employees not in the protected group; or the
14
sequence of events leading to the plaintiff’s discharge.” Leibowitz v. Cornell Univ., 584 F.3d 487,
502 (2d Cir. 2009), superseded by statute on other grounds. Departures from procedural regularity
also can raise a question as to the good faith of the process that led to an adverse employment
action. See, Stern v. Trustees of Columbia Univ. in City of New York, 131 F.3d 305, 313 (2d Cir.
1997) (internal citation omitted).
In support of her prima facie case, Plaintiff identifies a number of Caucasian Assistant DAs
in the DA’s Office who she claims received relatively more favorable treatment. To support a
claim of discrimination based on reference to so-called “comparators,” Plaintiff must show that
she was similarly situated in all material respects to the individuals to whom she compares herself.
Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir. 1997). “An employee is similarly
situated to her co-employees in all material respects if they were (1) ‘subject to the same
performance evaluation and discipline standards’ and (2) ‘engaged in comparable conduct.’” Ruiz
v. Cnty. of Rockland, 609 F.3d 486, 493–94 (2d Cir. 2010) (quoting Graham v. Long Island R.R.,
230 F.3d 34, 40 (2d Cir. 2000)). “[T]he standard for comparing conduct requires a reasonably
close resemblance of the facts and circumstances of plaintiff’s and comparator’s cases, rather than
a showing that both cases are identical.” Graham, 230 F.3d at 40.
With respect to the other Assistant DAs to whom Plaintiff seeks to compare herself, the
record shows that, in general, Assistant DAs were subject to the same standards of performance
and discipline. Plaintiff reviewed and signed a document acknowledging that she was subject to
the “Operations and Procedures Manual” for the DA’s Office, which provided, inter alia, that all
Assistant DAs served at the sole discretion of the DA and were terminable at will. See, Def. 56.1
Stmt. ¶ 12. In the sole year that the DA’s Office opted to complete written evaluations, evaluations
were completed for all Assistant DAs. Heilig Dep. at 58:21–23. While Plaintiff and the
15
comparators she identifies may have had different direct supervisors and worked in different
Bureaus, no one but Spota had “any decision-making authority to hire, fire or promote” Assistant
DAs. Mem. at 31.
Plaintiff also must establish that the comparators she identifies “engaged in comparable
conduct” and were punished less severely in order for their relatively favorable treatment to
support an inference of discrimination. Ruiz, 609 F.3d at 493–94. Plaintiff identified at least five
Assistant DAs with performance issues who, instead of being terminated, were transferred to
another bureau or were retrained. Opp’n at 9. Plaintiff asserts that several other Assistant DAs
identified by her failed to disclose exculpatory or evidentiary material to defendants in criminal
cases as required under decisions from the United States Supreme Court and the New York State
Court of Appeals. Opp’n at 11–12. Only one of these attorneys was terminated as a result.
Plaintiff contends further that the circumstances surrounding her termination raise an
inference of discrimination. Plaintiff points to the fact that two women of color were terminated
in the aftermath of the first and only systematic evaluations conducted at the DA’s Office. Opp’n
at 13. However, it is unclear from the record whether these two women were the only attorneys
terminated in the wake of the 2013 evaluations. See, Constant Dep. at 235:9–22. She also claims
that McCormack acted contrary to DA policy by not reviewing Plaintiff’s evaluation with her. Id.
Plaintiff’s written response to the McCormack evaluation alleged hostility and unfair treatment by
McCormack, but Spota, the only person with authority to terminate her, never was made aware of
Plaintiff’s response. Spota Dep. 56:13–16. Plaintiff maintains that, contrary to the “progressive
discipline policy” in place at the DA’s Office, she never received any written discipline,
suspension, or any form of notice that her job was in jeopardy prior to her termination. Opp’n at
8.
16
Based on the procedural irregularities associated with Plaintiff’s termination discussed
above, and notwithstanding the problems present in Plaintiff’s comparator evidence discussed
below in Section I(C)(1), Plaintiff has succeeded in raising an inference of discrimination based
on the circumstances of her termination. See, Norville v. Staten Island Univ. Hosp., 196 F.3d 89,
97 (2d Cir. 1999) (to satisfy prima facie case, “it is enough for a plaintiff to present evidence that
an employer departed from its usual employment practices and procedures in dealing with that
particular employee.”); Nurse v. Lutheran Med. Ctr., 854 F. Supp.2d 300, 317 (E.D.N.Y.2012)
(“It is well settled that departures from procedural regularity can create an inference of
discriminatory intent, sufficient to establish a prima facie case of employment discrimination.”)
(internal quotations and citation omitted).
To the limited extent Plaintiff alleges discrimination based on her gender, she fails to state
a prima facie claim. During Plaintiff’s employment, more than half of the attorneys working for
the DA’s Office were women, and more than two thirds of attorneys in the ECB and MCB were
women. See, Final Investigation Report and Basis of Determination, New York State Division of
Human Rights, Dkt. Entry No. 86-11 at 5. Half of Plaintiff’s proposed comparators are women,
and most of her supervisors were women. Bureau Chiefs McCormack and Kelly both took
maternity leaves while employed by the DA’s office. While Spota made the final decision to
terminate Plaintiff, he resolved to do so in consultation with Constant, a female and the second
highest ranking official in the DA’s office, further undermining Plaintiff’s claim of gender
discrimination. See, Moore v. Kingsbrook Jewish Med. Ctr., 2013 WL 3968748, at *11 (E.D.N.Y.
July 30, 2013) (collecting cases showing that claims of discrimination are weakened when those
who took the allegedly discriminatory action are members of the same protected class as the
plaintiff). In light of these facts, Plaintiff has failed to raise an inference that she was the subject
17
of discrimination based on her gender. Accordingly, Defendant’s motion to dismiss Plaintiff’s
Section 1983 and Title VII gender discrimination claims is granted.
B. Defendants’ Reason for Plaintiff’s Termination
Defendants have produced admissible evidence that could support a finding that Plaintiff’s
termination was not motivated by discrimination. See, Hicks, 509 U.S. at 507. Defendants assert
that Spota fired Plaintiff as a result of her “demonstrated inability to perform her job
responsibilities” and because she was “deceptive” and “dishonest to her Bureau Chiefs.” Def. 56.1
Stmt. ¶ 131; Spota Dep. at 74:9–13. The undisputed facts show that Plaintiff engaged in conduct
unbefitting an Assistant DA. Plaintiff failed to cover for another attorney as directed on at least
one occasion (Plaintiff Dep. at 163:24–164:7); failed to prepare law enforcement agents for
testimony in court (Def. 56.1 Stmt. ¶¶ 98–101); and lied to a supervisor about her conduct with a
judge’s law clerk concerning a confidential grand jury matter that violated a clear directive from
her supervisor. (Id. ¶ 83).
Poor performance is a legitimate, nondiscriminatory reason for failing to promote or
terminating an employee. See, Sengillo v. Valeo Elec. Sys., Inc., 538 F. Supp.2d 585, 588
(W.D.N.Y. 2008), aff’d, 328 Fed. Appx. 39 (2d Cir. 2009); Almonord v. Kingsbrook Jewish Med.
Ctr., 2007 WL 2324961, at *10, n.8 (E.D.N.Y. Aug. 10, 2007). Lying to a supervisor also has
been held to constitute a legitimate, non-discriminatory reason for terminating an employee. See,
Rodriguez v. Long Island Am. Water, Inc., 2014 WL 4805021, at *5 (E.D.N.Y. Sept. 26, 2014)
(lying to cover up timesheet falsification is a legitimate, non-discriminatory reason for terminating
employee); Opoku-Acheampong v. Depository Tr. Co., 2005 WL 1902847, at *4 n.3 (S.D.N.Y.
Aug. 9, 2005) (lying in violation of company policy provided a legitimate, non-discriminatory
18
reason for the plaintiff’s termination). Therefore, Defendants have produced a legitimate, nondiscriminatory motivation for terminating Plaintiff.
C. Plaintiff’s Evidence of Pretext
As Defendants have rebutted Plaintiff’s prima facie showing of discrimination, “the
inquiry then returns to the plaintiff, to demonstrate that the proffered reason is a pretext for
discrimination.” United States v. City of New York, 717 F.3d 72, 102 (2d Cir. 2013); See also,
Curley v. St. John’s Univ., 19 F. Supp.2d 181, 188 (S.D.N.Y. 1998) (plaintiff’s burden in pretext
analysis is to “adduce sufficient evidence to allow a rational fact finder to infer that the employer
was motivated in whole or in part by age discrimination”) (quoting Norton v. Sam’s Club, et al.,
145 F.3d 114, 118 (2d Cir. 1998)). At this stage of the analysis, the court may consider “the
strength of the plaintiff’s prima facie case, the probative value of the proof that the employer’s
explanation is false, and any other evidence that supports [or undermines] the employer’s case.”
Reeves, 530 U.S. at 148–49. “The task . . . is to examine the entire record and, in accordance with
Reeves, make the case-specific assessment as to whether a finding of discrimination may
reasonably be made.” Female Port Auth. Officer 47708 v. Port Auth. of New York & New Jersey,
2018 WL 3489569, at *6 (E.D.N.Y. July 19, 2018) (quoting Zimmermann v. Assocs. First Capital
Corp., 251 F.3d 376, 382 (2d Cir. 2001)).
1. Comparator Evidence
To carry her burden at the pretext stage of the analysis, Plaintiff relies in significant part
on the same claims she used to establish her prima facie case of discrimination, including her claim
that similarly situated Caucasian Assistant DAs received better treatment. Plaintiffs may use the
same claims to buttress their position at both the first and third stages of the McDonnell Douglas
burden shifting framework. See, Graham, 230 F.3d at 43.
19
As discussed above in Section I(A)(2), to support a claim of discrimination based on
reference to so-called “comparators,” Plaintiff must show that she was similarly situated in all
material respects to the individuals to whom she is compared. Shumway, 118 F.3d at 64.
Individuals are similarly situated in all material respects if they are (1) “subject to the same
performance evaluation and discipline standards” and (2) “engaged in comparable conduct.”
Graham, 230 F.3d at 40. A comparator’s conduct need not be identical to the plaintiff’s, but it
must bear a reasonably close resemblance to the plaintiff’s conduct in order to facilitate a
comparison that may shed light on a defendant’s discriminatory intent. Dotson v. City of Syracuse,
763 F. App’x 39, 43 (2d Cir. 2019) (citing Graham, 230 F.3d at 40); See also, Graham, 230 F.3d
at 40 (conduct may be comparable where it is of “comparable seriousness”) (quoting McDonnell
Douglas, 411 U.S. at 804).
Plaintiff’s references to more than a dozen comparators are of limited value in supporting
her race discrimination claim because none provides an objective basis for comparison with the
conduct in which Plaintiff engaged that led to her termination. Four of the attorneys identified by
Plaintiff committed violations of federal constitutional and state law in withholding exculpatory
and other evidence from defendants. One of these attorneys was terminated as a result. See, Opp’n
at 11–12; Constant Dep. at 189:11–191:5; Deposition of James G. Chalifoux (“Chalifoux Dep.”),
Dkt. Entry No. 86-4, at 97:21–99:25.
It is well settled that these prosecutorial failures of the comparators, while serious, do not
necessarily entail any bad faith or deception on the part of a prosecutor, and are qualitatively
distinct from the conduct for which Defendants claim Plaintiff was terminated. In Brady v.
Maryland, the Supreme Court held that the suppression of exculpatory evidence by a prosecutor
violates a criminal defendant’s right to due process “irrespective of the good faith or bad faith of
20
the prosecution.” 373 U.S. 83, 87 (1963); See also, Strickler v. Greene, 527 U.S. 263, 281–82
(1999) (holding that a Brady violation may occur irrespective of whether the failure to disclose
was willful or inadvertent). In People v. Rosario, the New York Court of Appeals held that
prosecutors must provide defense counsel with pre-trial statements made by a prosecution witness
relating to the witness’ testimony in court. 9 N.Y.2d 286, 289 (1961). This rule was later codified
at N.Y. CPL § 240.15. A showing of bad faith or deception is not required for a Rosario violation.
See, People v. Joseph, 86 N.Y.2d 565, 572 (1995).
Assistant DA 1, 4 a Caucasian male, was found by a court to have withheld unlawfully
documents and exculpatory evidence from a defendant in a homicide case. Constant Dep. at
189:11–191:5; Chalifoux Dep. at 97:21–99:25. Spota testified that he was “about to terminate”
this attorney as a result and that he “had his Bureau Chief go down to ask [Assistant DA 1] to come
down to my office to tell him, and I told her to warn him in advance that I was terminating him.”
Spota Dep. at 94:20–24. Spota said he could not recall if a similar warning was given to Plaintiff.
Id. at 95:3–6. Preempting his termination, Assistant DA 1 came to Spota’s office and resigned.
Id. at 94:19–95:2.
Plaintiff claims that a comparison with Assistant DA 1 reveals her
discriminatory treatment because she was not given advance warning of her termination and was
not allowed to pack up her own office, unlike Assistant DA 1, who was allowed to return to the
office at a later date to collect his belongings himself. Opp’n at 11–12; Pl. Counter. 56.1 Stmt. ¶¶
355–61.
While termination qualifies as an adverse employment action, “petty slights” and “minor
annoyances” such as not being able to collect one’s own belongings upon termination are not
actionable. See, Millea v. Metro-N. R. Co., 658 F.3d 154, 165 (2d Cir. 2011) (quoting Burlington
4
The Court uses the numbers assigned to Plaintiff’s comparators by Defendants in their Rule 56.1 Statement rather
than the names of the attorneys to whom Plaintiff seeks to compare herself.
21
N. and Santa Fe Fy. Co. v. White, 548 U.S. 53, 68 (2006)). In any case, Plaintiff does not allege
that she requested the opportunity to return to her office to pack her own things and was denied,
or that her belongings were not returned to her. As for Plaintiff’s allegation regarding the
opportunity to resign, at least one other court has found that denial of the opportunity to resign in
lieu of termination does not rise to the level of an adverse employment action. See, Tribble v.
Memphis City Sch., 2005 WL 1214268, at *4 (W.D. Tenn. May 19, 2005), aff’d, 193 F. App’x 401
(6th Cir. 2006). Even if it did so qualify, Plaintiff “pretty much knew” she would be fired when
she was called to a meeting with Constant and Heilig. See, Plaintiff Dep. at 231:5–11. As a result,
Defendants’ treatment of Assistant DA 1 does not support the conclusion that Defendants were
motivated by discriminatory animus in terminating Plaintiff.
Assistant DA 3, a Caucasian male, committed a Brady violation, was not terminated, and
was transferred from the Homicide Bureau to the Domestic Violence Bureau. Pl. Counter. 56.1
Stmt. ¶ 362; Constant Dep. at 209:8–21. In that case, the Brady violation resulted when, in his
summation at trial, Assistant DA 3 referred to a homicide detective without mentioning that the
detective was the subject of an Internal Affairs inquiry and a civil lawsuit. Spota Dep. at 98:2–20.
Plaintiff offers no information to establish that this attorney, who worked in a different bureau,
was similarly situated to her, other than the fact that he was also an Assistant DA. Nor does
Plaintiff offer any evidence, or even an allegation, that Assistant DA 3’s actions involved
dishonesty or bad faith of any kind. Therefore, the conduct in which Assistant DA 3 engaged does
not sufficiently resemble Plaintiff’s conduct so as to render this comparison probative of
discrimination.
Assistant DA 2, a Caucasian female, temporarily was stripped of her responsibilities and
ordered to undergo retraining after submitting exhibits to a court on which she had made improper
22
notations. Pl. Counter 56.1 Stmt. ¶¶ 352–54. Assistant DA 2’s actions were disclosed voluntarily
to the judge in the case, who made no finding of bad faith and called a mistrial before jury selection
was completed. Heilig Dep. at 138:10–25; 143:21–144:9. This conduct is different materially
from the conduct that led to Plaintiff’s termination. Moreover, Plaintiff offers no evidence as to
the level of experience of this attorney, who worked in a different bureau from Plaintiff. Therefore,
Assistant DA 2 is not an appropriate comparator to Plaintiff.
Assistant DA 12, a Caucasian female, committed a Brady violation in a murder case.
Opp’n at 12; Pl. Counter 56.1 Stmt. ¶ 365. Plaintiff offers no other information about the violation,
or about the attorney who was responsible for it, whom Defendants claim was an exemplary
prosecutor and promoted to Homicide Bureau Chief in 2007. Reply Affidavit of Edward Heilig
(“Heilig Reply Aff.”) at ¶ 9, Dkt. Entry No. 91. There is insufficient evidence upon which to
conclude that this attorney was similarly situated to Plaintiff in all material respects. As such,
comparison to her does not support Plaintiff’s claim of discrimination.
Plaintiff identifies a number of other Assistant DAs who suffered from largely unspecified
shortcomings in their performance, but were not terminated. Assistant DA 9, a Caucasian male,
was warned by Heilig that his work performance had to improve or he would be terminated, and
was allowed to return to the CAB from a felony bureau to improve his work performance, an
opportunity that was unavailable to Plaintiff. Pl. Counter 56.1 Stmt. ¶¶ 307–08; Constant Dep. at
221; Heilig Dep. at 134. However, Plaintiff offers no evidence as to the nature of this attorney’s
performance issues. Without citation to admissible evidence, Plaintiff asserts that Assistant DAs
10 and 11, a Caucasian male and female, were returned to non-felony bureaus in lieu of termination.
Pl. Counter 56.1 Stmt. ¶¶ 309, 310. Plaintiff does not identify the conduct in which these attorneys
engaged, provides no information on their background or qualifications, and cites only to her own
23
deposition testimony in support of her meager factual allegations. Thus, these two attorneys
cannot serve as comparators to Plaintiff.
Assistant DA 4, a Caucasian female, was transferred to the Domestic Violence Unit
(“DVU”) because “she was not living up to [the] expectations of her supervisors in terms of trial
statistics.” Opp’n at 9. Constant testified that, while Assistant DA 4’s supervisor in the Child
Abuse and Domestic Violence Bureau (“CADVB”) thought she was not handling as many cases
as she should, Assistant DA 4 was transferred partly due to her desire to work in a location closer
to her children. Constant Dep. at 224:13–226:18. Plaintiff’s termination was unrelated to her
“trial statistics,” rendering Assistant DA 4 inapposite as a comparator.
Plaintiff alleges that Assistant DA 5, a Caucasian male and Senior Assistant DA, was
demoted from the CADVB to the DVU because he was “unproductive” and had “clashed” with
his supervisor. Opp’n at 10. However, when Plaintiff herself clashed with McCormack, her
supervisor in the ECB, Plaintiff was transferred to another felony bureau, unlike Assistant DA 5,
who was demoted. Plaintiff received better treatment than Assistant DA 5. As such, comparison
of Plaintiff to this Assistant DA cannot support a finding of discrimination. The same is true with
respect to Assistant DA 6, a Caucasian female, who was demoted to the DCB after “struggling” in
the ECB. Opp’n at 9–10; Spota Dep. at 106:21–109:7. Moreover, there is no allegation, much
less admissible evidence, supporting the conclusion that these attorneys engaged in conduct
comparable to the acts for which Plaintiff was terminated.
The comparators identified by Plaintiff suffered from unspecified performance issues,
failure to manage a sufficient caseload or failure to make required disclosures to defendants in
criminal cases. No trust issues in connection with the comparators were identified. By contrast,
during his deposition, Spota explained that the “main reason” Plaintiff was terminated was “that
24
she was deceptive, dishonest to her Bureau Chiefs,” and Plaintiff concedes that she lied to her
supervisor about an ex parte conversation she had with a judge’s law clerk about a grand jury
matter. Spota Dep. at 74:7–13; Plaintiff Dep. at 218:14–17.
District courts in this Circuit have found that comparator evidence is not probative of
discriminatory intent where a plaintiff and her proposed comparators engaged in qualitatively
different conduct, including where a plaintiff was dishonest with her supervisors and her
comparators were not. See, Spratt v. Verizon Commc’ns Inc., 2014 WL 4704705, at *7 (S.D.N.Y.
Sept. 17, 2014), aff’d, 633 F. App’x 72 (2d Cir. 2016) (comparator evidence precluded where
plaintiff misrepresented his absence from work while comparator simply missed work); Anderson
v. Nat’l Grid, PLC, 93 F. Supp.3d 120, 144 (E.D.N.Y. 2015) (comparator evidence inapt where
comparators were forthcoming with company investigators and plaintiff was not); Rodriguez, 2014
WL 4805021, at *8 (finding that acts of “affirmative dishonesty” rendered plaintiff’s situation
materially distinct from that of comparators); Bengard v. United Parcel Serv., 2001 WL 1328551,
at *12 (E.D.N.Y. Aug. 22, 2001), aff’d, 48 F. App’x 350 (2d Cir. 2002) (finding that comparator
differs in “at least one important material respect” where plaintiff was terminated for dishonesty
and there was no evidence comparator had been dishonest).
In Thompson v. Spota, plaintiff brought discrimination claims against the DA’s Office after
being terminated “on the basis of her chronic lateness for work.” 2018 WL 6163301, at *12
(E.D.N.Y. Aug. 23, 2018), report and recommendation adopted, 2018 WL 4771901 (E.D.N.Y.
Sept. 30, 2018), reconsideration denied, 2019 WL 2602062 (E.D.N.Y. June 25, 2019) (hereinafter,
“Thompson”). Even though the court found that the plaintiff’s prima facie claim was weak, the
court denied defendants’ motion for summary judgment because of evidence that many other
Assistant DAs in the DA’s Office regularly arrived late. Id. at *23. The court summarized its
25
finding at the prima facie stage of the analysis by stating that the plaintiff had met her burden by
showing that “there were other Assistant DAs in her bureau who were outside her protected class
and arrived late, were generally subject to the same workplace standards regarding attendance, and
were not terminated.” Id.
Unlike Thompson, Plaintiff has not shown that the other Assistant DAs she identified
engaged in similar conduct, and generally has failed to provide specific information as to the
background or qualifications of her comparators. See, Conway v. Microsoft Corp., 414 F. Supp.2d
450, 464 (S.D.N.Y. 2006) (“Where co-employees are disciplined differently for conduct that is
fundamentally different in quality, there is no ‘objectively identifiable basis for comparison’ to
allow a finding that they are similarly situated.”) (quoting Graham, 230 F.3d at 40); Fahrenkrug
v. Verizon Servs. Corp., 652 F. App’x 54, 57 (2d Cir. 2016) (affirming grant of summary judgment
on gender discrimination claim where “[p]laintiff did not submit any evidence pertaining to her
male peers’ job duties, assignments, bonuses, or salary increases”). Accordingly, Plaintiff cannot
meet her ultimate burden of showing that Defendants intentionally discriminated against her by
relying solely on the proffered comparator evidence.
2. Other Evidence of Pretext
While Plaintiff’s comparator evidence is insufficient to create a triable question as to
Defendants’ purported discriminatory motivation, it remains to be determined whether Plaintiff’s
other evidence could allow a reasonable jury to find in her favor on her Title VII and Section 1983
claims. In instances where “the gap in conduct [between a plaintiff and her comparators] is large
enough that any number of explanations can explain the difference” in treatment, a plaintiff must
offer some additional evidence that makes discrimination a more likely explanation than equally
plausible nondiscriminatory explanations. See, Setelius v. Nat’l Grid Elec. Servs. LLC, 2014 WL
26
4773975, at *18 (E.D.N.Y. Sept. 24, 2014). Plaintiff has succeeded in doing so based on the
circumstances surrounding her termination.
For reasons that are not entirely clear, Spota inaugurated an Office-wide policy requiring
written evaluations of Assistant DAs in early 2013, during or around the time that Plaintiff was on
medical leave from the DA’s Office. In the wake of the newly instituted evaluation process, Spota
terminated two Assistant DAs, both of whom were female and minorities, in an office where 90%
of the attorneys were Caucasian. See, Constant Dep. at 232:24–233:9. During her deposition,
Constant could not recall any other attorneys who were terminated at that time, though she believed
there were others. Id. at 235:9–22. Plaintiff was terminated two weeks after Spota, in a letter
denying her a salary increase, suggested that she should “react constructively to this situation
and . . . strive to improve [her] performance moving forward.” The letter did not mention her
prospective termination and her termination came without any warning whatsoever.
After
Plaintiff’s termination, the evaluation system devised by Heilig was scrapped and no new
evaluation process was adopted thereafter. Heilig Dep. at 21:22–22:5.
The undisputed record reveals valid reasons for terminating Plaintiff, and further evidence
justifying her termination may be introduced at trial. Additionally, the comparators Plaintiff has
identified do not support a finding that Plaintiff was the victim of intentional discrimination.
Nonetheless, in light of the circumstances surrounding Plaintiff’s termination, the Court finds that
a reasonable jury could conclude by a preponderance of the evidence that the DA’s Office was
motivated in part by discriminatory intent. See, Stern, 131 F.3d at 313 (holding that the institution
and rapid dissolution of an evaluation process amounts to a “departure[ ] from procedural
regularity” that may raise a question as to the good faith of a process that leads to an employee’s
termination) (quoting Zahorik v. Cornell Univ., 729 F.2d 85, 93 (2d Cir. 1984)). As a result,
27
Defendants’ motion for summary judgment as to Plaintiff’s Title VII racial and national origin
discrimination claim against the DA’s Office is denied.
II.
Plaintiff’s Section 1983 Claims Against the Individual Defendants
Defendants argue that Plaintiff’s claims under Section 1983 as to all Individual Defendants
except for Spota must be dismissed because only Spota had authority to make decisions regarding
Plaintiff’s promotion or termination. Mem. at 30–33. As for Spota, Defendants contend that he
cannot be found liable under Section 1983 because his motivations for terminating Plaintiff were
not discriminatory. Id. at 33.
“In order to establish individual liability under § 1983, a plaintiff must show (a) that the
defendant is a person acting under the color of state law, and (b) that the defendant caused the
plaintiff to be deprived of a federal right.” Back v. Hastings On Hudson Union Free Sch. Dist.,
365 F.3d 107, 122 (2d Cir. 2004) (internal quotations and citation omitted). “If a defendant has
not personally violated a plaintiff’s constitutional rights, the plaintiff cannot succeed on a § 1983
action against the defendant.” Raspardo v. Carlone, 770 F.3d 97, 115 (2d Cir. 2014). Generally,
an individual defendant must be a “supervisor or have some position of authority or control over
the plaintiff” if s/he is to be found liable under Section 1983. Quinn v. Nassau Cnty. Police Dep’t,
53 F. Supp.2d 347, 355 (E.D.N.Y. 1999). Additionally, “a plaintiff must demonstrate some
affirmative link to causally connect the actor with the discriminatory action.” Whidbee v.
Garzarelli Food Specialties, Inc., 223 F.3d 62, 75 (2d Cir. 2000).
Plaintiff has failed to produce sufficient evidence showing personal involvement in her
termination or intent to discriminate on the part of Jablonski or McCormack. There is no evidence
that Jablonski was involved in Plaintiff’s termination, as Plaintiff apparently concedes. Opp’n at
19 (“[A]ll named Defendants were involved in the decision to terminate Plaintiff with the
28
exception of Defendant Jablonski[.]”). While McCormack gave Plaintiff a negative evaluation,
there is no evidence that she recommended Plaintiff’s termination. McCormack testified that she
had no involvement in Plaintiff’s termination and Plaintiff has not identified any evidence to the
contrary. McCormack Dep. at 97:5–16. Therefore, Plaintiff’s Section 1983 claims against
Jablonski and McCormack in their personal capacities are dismissed.
The question is closer with respect to Chalifoux, Clifford, and Kelly, Plaintiff’s supervisors
during her final months in the MCB. Chalifoux testified that he spoke with Clifford and Kelly
about Plaintiff’s conduct in the Bureau, but was not consulted regarding Plaintiff’s termination.
Chalifoux Dep. at 31:24–36:21; 95:24–96:11. Clifford testified that, while she had discussed
Plaintiff’s dishonesty with Kelly, she “never discussed terminating” Plaintiff and never discussed
Plaintiff’s performance with Heilig or Constant. Clifford Dep. at 124:14–126:13. Kelly similarly
testified that she was “absolutely not” involved in the decision to terminate Plaintiff. Kelly Dep.
at 124:5–12. On the other hand, Spota testified that it “[w]ould have been” Chalifoux, Clifford,
and Kelly with whom he spoke in July 2013 regarding Plaintiff’s termination, though he did not
recall a specific conversation with them, nor did he testify that any of the three recommended
Plaintiff’s termination. Spota Dep. at 72:20–73:9. Plaintiff offers only conclusory allegations to
counter the sworn testimony from Chalifoux, Clifford, and Kelly. Spota’s testimony does not
indicate that any of these Defendants recommended that Plaintiff be terminated, and Plaintiff
offered no evidence to the contrary.
Accordingly, Plaintiff’s Section 1983 claims against
Chalifoux, Clifford, and Kelly in their personal capacities are also dismissed.
Material issues of fact preclude a grant of summary judgment as to the Section 1983 claims
against the remaining Individual Defendants. Spota made the decision to terminate Plaintiff and
testified that “it would have been Miss Constant, and more than likely Mr. Heilig” who
29
recommended that Plaintiff be terminated. Spota Dep. at 73:20–74:2. Constant and Heilig
personally terminated Plaintiff after discussing taking such action with Spota. Spota Dep. at
73:20–74:2. As these individuals were involved personally with the decision to terminate Plaintiff,
and the Court has concluded that disputed material issues of fact remain as to whether Plaintiff’s
termination was motivated in part by discriminatory intent relating to Plaintiff’s race or national
origin, Defendants’ motion for summary judgment as to the Section 1983 claims against Spota,
Constant, and Heilig in their personal capacities is denied.
III.
The Section 1983 Claims Against Suffolk County
Plaintiff alleges that, in terminating her and another Assistant DA of color, Defendants
have engaged in a pattern and practice of discrimination for which the County may be held liable
under Section 1983. Opp’n at 30. Plaintiff also argues that the County may be held liable under
Section 1983 because Spota, who qualifies as a policymaker for the County, violated Plaintiff’s
right to equal protection under the Constitution in terminating her employment. Id. at 29–30.
While the doctrine of respondeat superior does not apply in cases brought under Section
1983, Suffolk County can be held liable for the actions of its employees, if the “execution of a
government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts
may fairly be said to represent official policy, inflicts the injury.” Monell, 436 U.S. at 694.
Specifically, to establish liability for a municipality under Section 1983, a plaintiff must show “(1)
an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a
constitutional right.” Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983). A plaintiff may
establish a municipal policy or custom by showing, inter alia, that “an official with policymaking
authority took action or made a specific decision[,] which caused the alleged violation of
30
constitutional rights.” Jouthe v. City of New York, 2009 WL 701110, at *7 (E.D.N.Y. Mar. 10,
2009) (citing Pembraur v. City of Cincinnati, 475 U.S. 469, 483–84 (1986)).
Spota “had the authority to set department-wide personnel policies” in the DA’s Office and,
therefore, was an official with policymaking authority. See, Mandell v. Cnty. of Suffolk, 316 F.3d
368, 385 (2d Cir. 2003); See also, Pinaud v. Cnty. of Suffolk, 52 F.3d 1139, 1153 n.14 (2d Cir.
1995) (“[W]here a district attorney acts as the manager of the district attorney’s office, the district
attorney acts as a county policymaker.”) (quoting Walker v. City of New York, 974 F.2d 293, 301
(2d Cir. 1992)).
Disputed material issues of fact remain as to whether Spota, an individual with
policymaking authority for the County, took action that caused a deprivation of Plaintiff’s
constitutional rights. Accordingly, Defendants’ motion to dismiss the Section 1983 claim against
the County is denied. Insofar as the Section 1983 claims are asserted against the Individual
Defendants in their official capacities, these claims are dismissed as duplicative of Plaintiff’s
Section 1983 claims against the County. See, Tsotesi v. Bd. of Educ., 258 F. Supp.2d 336, 338
n.10 (S.D.N.Y. 2003) (citing Kentucky v. Graham, 473 U.S. 159, 165–66 (1985)). As discussed
in Section II, Defendants’ summary judgment motion regarding the Section 1983 claims against
the Individual Defendants in their personal capacities is denied with respect to Spota, Constant,
and Heilig and granted with respect to the remaining Individual Defendants.
IV.
The ADA Claims
A. Plaintiff’s Prima Facie Case of Discrimination
The ADA provides that no covered employer “shall discriminate against a qualified
individual on the basis of disability . . . in regard to . . . discharge of employees.” 42 U.S.C.
§ 12112(a). Claims of unlawful employment discrimination under the ADA also may be analyzed
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under the McDonnell Douglas burden-shifting framework. See, Raytheon Co. v. Hernandez, 540
U.S. 44 (2003); Stolpner v. New York Univ. Lutheran Med. Ctr., 2018 WL 4697279, at *21
(E.D.N.Y. Sept. 29, 2018).
To establish a prima facie case of discrimination under the ADA, a plaintiff must show
that: 1) her employer is subject to the ADA; 2) she is disabled within the meaning of the ADA or
perceived to be so by her employer; 3) she otherwise was qualified to perform the essential
functions of the job with or without reasonable accommodation; and 4) she suffered an adverse
employment action because of her disability. Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 134
(2d Cir. 2008). As to the second factor, the Supreme Court has articulated a three-pronged test
that tracks the language of the statute to decide if an individual is disabled within the meaning of
the ADA. See, 42 U.S.C. § 12102(1). First, the plaintiff must show that her condition constitutes
a physical or mental impairment. Second, the life activity the plaintiff claims has been limited by
the physical or mental impairment must qualify as a “major life activity” under the ADA. Finally,
the mental or physical impairment must form a substantial limit on the individual’s participation
in the major life activity. See, Petrone v. Hampton Bays Union Free Sch. Dist., 2013 WL 3491057,
at *19 (E.D.N.Y. July 10, 2013), aff’d, 568 F. App’x 5 (2d Cir. 2014) (citing Bragdon v. Abbott,
524 U.S. 624, 631–639 (1998)).
As to the first element of the prima facie case, there is no dispute that the DA’s Office is
subject to the ADA. As to the second element of the prima facie case, Plaintiff has established
that she is disabled under the ADA as amended by the ADA Amendments Act of 2008.
Regulations promulgated by the Equal Employment Opportunity Commission (“EEOC
Regulations”) are accorded “great deference.” See, Anderson v. Nat’l Grid, PLC, 93 F. Supp.3d
120, 133 (E.D.N.Y. 2015) (citing Francis v. City of Meriden, 129 F.3d 281, 283 n.1 (2d Cir. 1997)).
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These regulations state that it should be “easily concluded” that “bipolar disorder” is an
impairment that limits the major life activity of “brain function.” 29 C.F.R. § 1630.2(j)(3)(iii).
While Plaintiff does not indicate the specific life activity that has been limited by her
bipolar disorder, common sense dictates that a reasonable juror can conclude that “brain function”
is a prerequisite for carrying out the responsibilities of an Assistant DA. The EEOC Regulations
provide that the Court may not consider whether the impairment of bipolar disorder substantially
limits Plaintiff’s brain function and, in turn, her performance as an Assistant DA, when the
condition is treated with prescription medication because “[t]he determination of whether an
impairment substantially limits a major life activity shall be made without regard to the
ameliorative effects of mitigating measures,” including the use of medication. 29 C.F.R.
§ 1630.2(j)(1)(vi), (5)(i). In accord with the EEOC’s admonition that the phrase “substantially
limits” in the definition of “disability” be “construed broadly in favor of expansive coverage,” and
that “the threshold issue of whether an impairment ‘substantially limits’ a major life activity should
not demand extensive analysis,” the Court concludes that Plaintiff is disabled under the ADA. 29
C.F.R. § 1630.2(j)(1).
For the reasons discussed above in Section I(A)(1), Plaintiff was qualified to perform the
essential functions of an Assistant DA. Accordingly, the third element of her prima facie case is
satisfied. As to the fourth element of her prima facie case, the relatively close temporal proximity
between Defendants’ learning of Plaintiff’s hospitalization and diagnosis with bipolar disorder and
Plaintiff’s termination is sufficient to raise an inference that she was terminated because of her
disability.
The DA’s Office was informed on or around November 20, 2012 that Plaintiff had been
admitted to a medical center, after suffering a nervous breakdown, and on or around December 14,
33
2012 was notified that Plaintiff had been diagnosed with Bipolar II Disorder. Pl. Counter 56.1
Stmt. ¶¶ 99–100. Constant testified that she knew Plaintiff was receiving treatment for mental
health issues when she sent the January 8, 2013 letter to Plaintiff inquiring about her ability to
perform her job functions. Constant Dep. at 129:20–21. Kelly testified that she learned of
Plaintiff’s bipolar diagnosis early in Plaintiff’s tenure at the MCB and declared in her affidavit that
Plaintiff informed Kelly of her illness on May 16, 2013. Kelly Dep. at 135:8–16; Affidavit of
Kerriann Kelly, Dkt. Entry No. 80, at 7. Most of the problems relating to Plaintiff’s performance
that are reflected in the undisputed factual record occurred between Plaintiff’s return from medical
leave on January 11, 2013 and her termination on July 16, 2013.
The Second Circuit has not “drawn a bright line to define the outer limits beyond which a
temporal relationship is too attenuated” to show a causal connection between revelation of a
protected characteristic and an adverse employment action. See, Gorman-Bakos v. Cornell Co-op
Extension of Schenectady Cnty., 252 F.3d 545, 554 (2d Cir. 2001). However, the approximately
six-month period at issue here does not foreclose the inference of such a relationship for purposes
of Plaintiff’s prima facie case. See, Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir.
2010) (“[W]e have previously held that five months is not too long to find [a] causal relationship.”)
(citing Gorman-Bakos, 252 F.3d at 555); Behringer v. Lavelle Sch. for Blind, 2010 WL 5158644,
at *11 (S.D.N.Y. Dec. 17, 2010) (finding inference of discrimination where plaintiff was
terminated eight months after disclosing disability); But see, Garrett v. Garden City Hotel, Inc.,
2007 WL 1174891, at *21 (E.D.N.Y. Apr. 19, 2007) (“[D]istrict courts in this Circuit have
consistently held that a passage of more than two months between the protected activity and the
adverse employment action does not allow for an inference of causation.”) (collecting cases). The
timeline of Plaintiff’s medical leave for mental health treatment, followed by the unusual
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performance evaluation process, increased tensions with her supervisors after her return to work,
that concluded shortly thereafter with her termination, is sufficient to carry Plaintiff’s minimal
burden at the prima facie stage.
B. Defendants’ Legitimate Reason for Plaintiff’s Termination
For the same reasons discussed in the context of Plaintiff’s Title VII and Section 1983
claims in Section I(B), above, Defendants have articulated a non-discriminatory reason for
Plaintiff’s termination, to wit, trust issues generated by Plaintiff’s dishonesty to one of her
supervisors and her deficient performance on a number of occasions. The burden thus shifts to
Plaintiff to produce evidence sufficient to allow a reasonable jury to conclude, by a preponderance
of the evidence, that Plaintiff’s disability was a motivating factor behind her termination.
C. Plaintiff’s Evidence of Pretext as to Disability Discrimination
Plaintiff has not adduced evidence sufficient for a reasonable jury to conclude that her
termination was motivated, in part, by unlawful disability discrimination. As evidence of disability
discrimination, Plaintiff asserts that, prior to returning from medical leave, she was required to
submit a doctor’s note confirming she was able to perform her job at the DA’s Office, but
Defendants did not request a similar note from other attorneys. Opp’n at 25. However, Plaintiff
concedes that submission of such a note was standard DA’s Office policy and cites no evidence in
support of her claim that the policy was not enforced as to any other attorneys who had taken
medical leave. Pl. 56.1 Stmt. ¶ 23. Constant testified that the policy of requiring attorneys
returning from medical leave to submit a doctor’s note had been applied in all prior instances.
Constant Dep. at 147:4–11. Constant’s deposition testimony suggests that she previously had not
sent a letter “of this length and detail” describing the duties of an Assistant DA to someone on
medical leave, but there is no indication in the summary judgment record that Constant’s
35
description of the job was overstated or inaccurate. See, Id. at 147:21–148:4. Even if Constant’s
letter described Plaintiff’s duties in more detail than letters she had written to other Assistant DAs,
this fact is an insufficient basis upon which to find intentional discrimination based on Plaintiff’s
disability.
Attempting to identify comparator based evidence for her disability discrimination claim,
Plaintiff alleges that, in contrast to her treatment, a Caucasian female Assistant DA who took leave
to participate in an alcohol addiction rehabilitation program was not required to submit a letter
indicating that she was healthy enough to work before she could return to the DA’s Office. Opp’n
at 26. However, Heilig testified that the other Assistant DA was not required to submit a letter
prior to returning to work because she had not taken medical leave, but rather used accumulated
sick time to undergo drug treatment. Heilig Dep. at 71:5–7. Heilig testified that he had required
and received letters from Assistant DAs confirming they were capable of performing their job
duties when returning from medical leave on numerous other occasions. Id. at 69:23–70:5.
Plaintiff offered no evidence rebutting this testimony.
Plaintiff also alleges that she was subject to enhanced scrutiny upon her return from
medical leave in support of her claim of disability discrimination. See, Opp’n at 25–26. She
claims, for example, that Heilig told Plaintiff’s MCB supervisors to “keep an eye” on her, and
Kelly, Clifford, and Constant accordingly took notes on Plaintiff’s performance. However,
Plaintiff had just been transferred from the ECB, and it is undisputed that she had some
performance issues there. 56.1 Stmt. ¶¶ 31, 43–44. Heilig testified that he wanted Plaintiff’s
supervisors to “keep an eye on her” to “evaluate her effectiveness as an assistant district attorney
similar to the way they would do it for any other Assistant DA transferred to a new bureau.” Heilig
Dep. at 37:3–15. Kelly testified that she takes notes on all Assistants who work for her, and
36
Constant testified that she had seen Clifford take notes on the Assistants she supervised. Kelly
Dep. at 76:17–77:3; Constant Dep. at 247:19–248:12. Supervisors are entitled to monitor their
employees and there is no evidence that Plaintiff’s supervisors treated her differently than any
other similarly situated Assistant DA in doing so.
The only colorable argument posited by Plaintiff in support of her disability discrimination
claim is that her “alleged job performance issues mysteriously arose in 2012 and were not put in
writing until early 2013 when Defendants Heilig and Spota determined to conduct written
evaluations for the first and last time.” Opp’n at 24. This temporal proximity argument was
sufficient to meet Plaintiff’s minimal burden at the prima facie stage, but, standing alone, it is an
insufficient basis for a reasonable jury to conclude that Plaintiff was the victim of intentional
disability discrimination. See, Kennebrew v. New York City Hous. Auth., 2002 WL 265120, at *16
(S.D.N.Y. Feb. 26, 2002) (“While timing may be sufficient to establish an inference of
discrimination, the close proximity of a termination to the plaintiff’s announcement of [a disability]
alone is insufficient to demonstrate a pretext.”); Kerman-Mastour v. Fin. Indus. Regul. Auth., Inc.,
814 F. Supp.2d 355, 371 (S.D.N.Y. 2011) (“[T]emporal closeness gives rise only to a weak
inference of discriminatory intent even with respect to an employee’s termination.”); Verga v.
Emergency Ambulance Serv., Inc., 2014 WL 6473515, at *5 (E.D.N.Y. Nov. 18, 2014) (“While
temporal proximity of the comments and the adverse action alone may still be sufficient at the
prima facie stage, it is not sufficient at the pretext stage.”) (internal quotation omitted). More is
required for a reasonable jury to conclude that Plaintiff was the subject of discrimination based on
her disability. See, Stoddard v. Eastman Kodak Co., 309 F. App’x 475, 480 (2d Cir. 2009) (finding
that “where the protected activity took place two months prior to the alleged adverse action, and
where there is nothing other than that temporal proximity invoked to establish a retaliatory intent,
37
the causal relationship is not established.”); Forde v. Beth Israel Med. Ctr., 546 F. Supp.2d 142,
152 (S.D.N.Y.2008) (temporal proximity alone insufficient to establish pretext).
With no valid comparator evidence in the ADA context, only the timing of her termination
to raise an inference of discrimination based on her disability, and a legitimate non-discriminatory
rationale for the adverse employment action against her, Plaintiff has not alleged evidence
sufficient for a reasonable jury to conclude she was the subject of intentional discrimination based
on her disability. Accordingly, Defendants’ motion for summary judgment as to Plaintiff’s ADA
claims is granted.
V.
The Failure to Promote Claims Under Section 1983 and the ADA
To establish a prima facie claim based on a failure to promote, Plaintiff must show that the
circumstances surrounding the failure to promote give rise to an inference of discrimination. See,
Fletcher v. ABM Bldg. Value, 2018 WL 1801310, at *8 (S.D.N.Y. Mar. 28, 2018), aff’d, 775 F.
App’x 8 (2d Cir. 2019) (quoting Mandell, 316 F.3d at 378). When failure to promote claims are
founded upon a reference to comparators, Plaintiff and the comparators must “share a sufficient
amount of significant employment characteristics,” including “similarities in seniority,
performance, and specific work duties.” Fletcher, 2018 WL 1801310, at *10 (quoting Bush v.
Fordham Univ., 452 F. Supp.2d 394, 410 (S.D.N.Y. 2006)).
Plaintiff identifies five Assistant DAs who allegedly were less qualified and spent less time
in the CAB than she before being promoted, but offers no support for her claim other than her own
testimony. Pl. Counter 56.1 Stmt. ¶¶ 49, 56, 60, 61. Plaintiff has produced no evidence as to the
qualifications or performance of these attorneys. Therefore, Plaintiff has failed to allege facts
sufficient to establish that she shares a sufficient amount of significant employment characteristics
with the other Assistant DAs with whom she seeks to compare herself.
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Moreover, courts within the Second Circuit have held that allegations of a failure to
promote quickly do not establish an adverse employment action and, thus, fail to allege unlawful
discrimination. See, e.g., Jeffrey v. Montefiore Med. Ctr., 2013 WL 5434635, at *20 (S.D.N.Y.
Sept. 27, 2013) (“[I]t is a failure to promote, not a failure to quickly promote that makes an
employment action materially adverse.”) (emphasis in original); Ulrich v. Moody’s Corp., 2014
WL 12776746, at *14 (S.D.N.Y. Mar. 31, 2014), report and recommendation adopted as modified,
2014 WL 4977562 (S.D.N.Y. Sept. 30, 2014) (“plaintiff’s failure-to-promote claim cannot survive
a motion to dismiss because of the simple fact that plaintiff actually received a promotion”); Davis
v. City Univ. of New York, 1996 WL 243256, at *9 (S.D.N.Y. May 9, 1996) (“The eventual grant
of tenure and a promotion to [plaintiff], even if after a delay, and even if that delay were due to
discrimination or retaliation, contradicts her claim that she suffered a materially adverse change.”).
In fact, Plaintiff was promoted from the CAB to the ECB, and later went on to another felony
bureau, the MCB.
Plaintiff has not produced evidence supporting an inference of discrimination in
Defendants’ failure to promote her more quickly out of the CAB and thus fails to establish a prima
facie case. Accordingly, Defendants’ summary judgment motion as to Plaintiff’s Section 1983
claim for failure to promote is granted.
Plaintiff’s ADA claim based on a failure to promote theory also is dismissed. None of the
Defendants had any reason to believe Plaintiff was disabled until November 2012, seven years into
her tenure at the DA’s Office and well after she was promoted out of the CAB. Consequently,
Defendants’ motion for summary judgment also is granted with respect to Plaintiff’s failure to
promote claims under the ADA.
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CONCLUSION
For the reasons set forth above, Defendants’ motion for summary judgment is denied as to
the Title VII race and national origin discrimination claim against the DA’s Office, the Section
1983 race discrimination claim against Suffolk County, and the Section 1983 race and national
origin discrimination claims against Spota, Constant, and Heilig in their personal capacities.
Defendants’ motion for summary judgment is granted in all other respects.
SO ORDERED.
Dated: Brooklyn, New York
September 30, 2020
/s/
DORA L. IRIZARRY
United States District Judge
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