Prophete-Camille v. Stericycle, Inc.
MEMORANDUM & ORDER granting in part and denying in part 52 Motion for Summary Judgment. SO ORDERED that Defendant's motion for summary judgment (Docket Entry 52) is GRANTED IN PART and DENIED IN PART. Defendant's motion is DENIED with respect to Plaintiff's Title VII and NYSHRL hostile work environment claims and GRANTED with respect to Plaintiffs Title VII and NYSHRL retaliation claims. Ordered by Judge Joanna Seybert on 2/13/2017. (Florio, Lisa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM & ORDER
Brian Adam Heller, Esq.
Davida S. Perry, Esq.
Schwartz & Perry
295 Madison Avenue
New York, NY 10017
James V. Garvey, Esq.
Cara J. Ottenweller, Esq.
Jonathan A. Wexler, Esq.
Vedder Price P.C.
222 N. Lasalle Street, Suite 2600
Chicago, IL 60601
SEYBERT, District Judge:
commenced this action against Stericycle, Inc. (“Defendant” or
“Stericycle”), asserting claims for hostile work environment and
retaliation under Title VII of the Civil Rights Act of 1964 as
amended, 42 U.S.C. §§ 2000 et. seq. (“Title VII”) and the New York
State Human Rights Law, N.Y. EXEC. LAW § 290 et. seq. (“NYSHRL”).
Presently pending before the Court is Defendant’s motion for
(Def.’s Mot., Docket Entry 52.)
following reasons, Defendant’s motion is GRANTED IN PART and DENIED
Stericycle collects, processes, and disposes of medical
(Def.’s 56.1 Stmt., Docket Entry 52-2, ¶ 3.)
November 2009, Plaintiff began working at Stericycle as a Sharps
(Def.’s 56.1 Stmt. ¶ 4.)
Plaintiff was a
member of the International Brotherhood of Teamsters, Local 813
(the “Union”) while she was employed at Stericycle.
Stmt. ¶ 5.)
In 2012 and 2013, Stericycle utilized a Team Member
Handbook and Business Conduct Guideline that contained, inter
alia, a harassment policy “stat[ing] that Stericycle does not
tolerate any form of harassment, including harassment on the basis
of sex,” (the “Harassment Policy”).
(Def.’s 56.1 Stmt. ¶¶ 9, 11.)
harassment to their immediate supervisor, the Area Vice President
of Human Resources for their area, or the Vice President of Human
(Def.’s 56.1 Stmt. ¶ 12.)
The Harassment Policy also
provides the phone number for an employee help line.
The following material facts are drawn from Defendant’s Local
Civil Rule 56.1 Statement and Plaintiff’s Local Civil Rule 56.1
Counterstatement. Any relevant factual disputes are noted. All
internal quotation marks and citations have been omitted.
Stmt. ¶ 13.)
On November 18, 2009, Plaintiff acknowledged receipt
of the Team Member Handbook.
(Def.’s 56.1 Stmt. ¶ 17.)
“Communications Channels” policy that provides that an employee
who becomes aware of an “unlawful or unethical situation” should
immediately inform Stericycle by contacting their manager or Human
confidential communication directly to senior management.
56.1 Stmt. ¶ 21.)
On November 18, 2009, Plaintiff acknowledged
receipt of the Business Conduct Guideline.
(Def.’s 56.1 Stmt.
As a Sharps Service Specialist, Plaintiff traveled to
hospitals and medical facilities in the New York area and was
responsible for replacing full containers of sharps with empty
(Def.’s 56.1 Stmt. ¶ 28.)
Different site supervisors
were responsible for certain locations.
(Def.’s 56.1 Stmt. ¶ 29.)
Benjamin Hart (“Hart”) served as Plaintiff’s manager.
56.1 Stmt. ¶¶ 26-27.)
July 4, 2011, through February 7, 2012.
(Def.’s 56.1 Stmt. ¶ 30.)
In early 2012, Plaintiff began working at the Katz Women’s Center
(“Katz”) at Long Island Jewish Medical Center (“LIJ”).
56.1 Stmt. ¶ 31.)
At that time, Plaintiff began working with Alex
Navarro (“Navarro”), a Service Supervisor who was responsible for
approximately fifteen locations, including LIJ.
Stmt. ¶¶ 34-35.)
spent at Katz.
The parties dispute the amount of time Navarro
While Defendant alleges that Navarro did not work
at LIJ every day and “pop[ped] in” at Katz once or twice per week,
(Def.’s 56.1 Stmt. ¶¶ 36-37), Plaintiff alleges that “at one point”
Navarro worked on-site at LIJ every day, (Pl.’s 56.1 Counterstmt.,
Docket Entry 54, ¶¶ 36-37).
Defendant alleges that Navarro’s
mischaracterization of her deposition testimony.
Stmt. ¶ 38; Pl.’s 56.1 Counterstmt. ¶ 38.)
University (“NYU”) three days per week and served LIJ two days per
(Def.’s 56.1 Stmt. ¶ 39.)
The Site Supervisor at NYU was
Sal Vento (“Vento”); Navarro had no responsibilities at NYU.
(Def.’s 56.1 Stmt. ¶ 40.)
Approximately four to six weeks after Plaintiff began
working with Navarro, she learned that he had complained to Hart
about her work performance, particularly that she “was not doing
much work and did not want to work.”
(Def.’s 56.1 Stmt. ¶¶ 41-
Navarro testified at his deposition that Plaintiff did not
report to work at the appropriate time and containers were not
(“Kearney”), Director of Environmental Services for LIJ, stated in
an Affidavit that he “receiv[ed] complaints from various LIJ
personnel about the areas that Plaintiff was assigned to service.”
(Def.’s 56.1 Stmt. ¶ 47.)
Hart directed Navarro to work with
Plaintiff regarding his complaints and “document the issues.”
(Def.’s 56.1 Stmt. ¶ 48.)
Defendant alleges that Hart testified
that other supervisors also complained about Plaintiff.
56.1 Stmt. ¶ 49.) Plaintiff disputes that allegation to the extent
that Hart only identified Vento as a supervisor who complained
about Plaintiff. (Pl.’s 56.1 Counterstmt. ¶ 49.) Similarly, while
“warnings,” Plaintiff alleges that she received a “discipline form
or notification” from Vento after she complained about sexual
(Def.’s 56.1 Stmt. ¶ 50; Pl.’s 56.1 Counterstmt.
Hart contacted Plaintiff regarding Navarro’s concerns.
(Def.’s 56.1 Stmt. ¶ 52.)
Plaintiff alleges that she advised Hart
that Navarro had asked her out and she declined, and that Navarro
was assigning her additional work. (Def.’s 56.1 Stmt. ¶ 52.) Hart
directed Plaintiff to contact her Union. (Def.’s 56.1 Stmt. ¶ 53.)
representative, Raymond Woods (“Woods”), and advised that “Navarro
had asked her out, that he said she looked like his ex-girlfriend,
and that he offered to let her leave early but still get paid for
eight hours if she went out with him.”
(Def.’s 56.1 Stmt. ¶¶ 54,
A couple of days later, Woods called Plaintiff, advised that
Navarro had denied her allegations, and told Plaintiff to contact
him if Navarro made any additional comments.
(Def.’s 56.1 Stmt.
Subsequently, Plaintiff called Woods and told him that
Navarro had called her, asked where she was, and when she said she
was in the bathroom, Navarro waited for her outside of the door.
(Def.’s 56.1 Stmt. ¶ 59.)
Plaintiff also advised Woods that
Navarro “frequently call[ed] Plaintiff to ask where she was, and
he was coming to LIJ and waiting for her.”
(Def.’s 56.1 Stmt.
Plaintiff also called Woods to complain that Navarro
directed her to “work faster,” and “contact him when she finished
her duties for additional work.”
(Def.’s 56.1 Stmt. ¶ 62.)
Plaintiff alleges that during this phone call, she also complained
that Navarro said he wanted to have sex with her.
Counterstmt. ¶ 62.)
Plaintiff, Hart, Navarro, and Woods attended a meeting
at Stericycle’s Farmingdale facility with Operations Manager Louis
Jannotte (“Jannotte”), and Anthony Marino (“Marino”), the Union’s
(Def.’s 56.1 Stmt. ¶¶ 64-66.)
represented Plaintiff at the meeting.
Woods and Marino
(Def.’s 56.1 Stmt. ¶ 67.)
Hart testified that the meeting’s purpose was to discuss Navarro’s
issues with Plaintiff’s performance and Plaintiff’s issues with
the amount of work assigned to her.
(Def.’s 56.1 Stmt. ¶ 68.)
Plaintiff disputes that characterization and alleges that she
complained about Navarro’s sexual harassment during the meeting.
(Pl.’s 56.1 Counterstmt. ¶ 68.)
Plaintiff alleges that during
this meeting, Plaintiff advised that Navarro asked her out, told
her she did not have to pay full-price airfare because he received
a military discount, offered to take her to his house in North
Carolina, told her that she looked like his ex-girlfriend, and
told her that his former employer paid him more than Stericycle to
(Def.’s 56.1 Stmt. ¶ 69.)
Plaintiff also advised
that Navarro had assigned her additional work and sometimes yelled
(Def.’s 56.1 Stmt. ¶ 73.)
While Plaintiff alleges that
Navarro also told her she could perform oral sex on him, she was
(Def.’s 56.1 Stmt. ¶ 71.)
allegations and alleged that Plaintiff “was slow at her job, that
she could not get to work, and that she was sometimes late to
(Def.’s 56.1 Stmt. ¶ 74.)
Marino asked whether Plaintiff
could be assigned to a different supervisor.
(Def.’s 56.1 Stmt.
specifically requested a female employee and “they did not want to
interfere with the LIJ account.”
(Def.’s 56.1 Stmt. ¶ 76.)
the end of the meeting, Jannotte looked at Navarro and remarked
that “he hoped there would not be a problem again.”
Stmt. ¶ 77.)
From May 23, 2012, through April 29, 2013, Plaintiff
took a workers’ compensation leave of absence due to a shoulder
injury. (Def.’s 56.1 Stmt. ¶¶ 80-81.) During her leave, Plaintiff
inquired whether light duty was available and was told it was not.
(Def.’s 56.1 Stmt. ¶¶ 84-85; Pl.’s 56.1 Counterstmt. ¶¶ 84-85.)
Plaintiff returned to work in 2013 and resumed working
two days per week at Katz and three days per week at NYU.
56.1 Stmt. ¶ 86.)
The parties dispute whether Kearney received
(Def.’s 56.1 Stmt. ¶ 87; Pl.’s 56.1 Counterstmt. ¶ 87.)
Defendant alleges that when Plaintiff returned, Kearney received
responsible for had not been serviced.
(Def.’s 56.1 Stmt. ¶ 87.)
Hart directed Navarro to investigate these issues.
investigation and “determined that Plaintiff had issues arriving
to work on time, starting work on time, and missing areas that
needed to be serviced.”
(Def.’s 56.1 Stmt. ¶ 90.)
disputes this allegation and alleges that Hart testified that he
did not know whether Navarro spoke to anyone aside from Plaintiff
Plaintiff alleges that Navarro told her that she would be fired if
she did not move faster and that she was “going to regret [her]
(Pl.’s 56.1 Counterstmt. ¶ 92.)
Plaintiff concedes that
she could not keep up with her assigned work and believes that
Navarro assigned her additional work because of her complaints.
(Def.’s 56.1 Stmt. ¶ 93.)
Plaintiff alleges that after she returned to work from
her leave of absence, Navarro harassed her by walking behind her,
commenting on her rear end and mouth, and asking her to tuck her
(Def.’s 56.1 Stmt. ¶ 94.)
Plaintiff alleges that she
continued to contact Woods to complain about Navarro; however,
Hart did not receive any calls from Woods.
(Def.’s 56.1 Stmt.
Plaintiff alleges that in 2013, she contacted Hart “each
time she felt that Navarro was intimidating her,” and told him
that Navarro “would pick on her, that he would give her hard, heavy
work or additional work, and that he would check up on her more
than he would the other technicians.”
(Def.’s 56.1 Stmt. ¶¶ 97-
Hart testified that he followed up with Navarro and Navarro
advised that he would follow-up on issues that he observed.2
(Def.’s 56.1 Stmt. ¶ 99.)
Hart testified that he did not believe
Plaintiff’s complaints regarding “harder or heavier work” were
The parties dispute whether Hart testified that other LIJ
supervisors raised issues. (Def.’s 56.1 Stmt. ¶ 99; Pl.’s 56.1
Counterstmt. ¶ 99.) Hart testified at his deposition that when
he spoke to Navarro about Plaintiff’s complaints, Navarro said
“that he would follow up on, you know, any issues that he would
observe, or anything that a supervisor would tell him.” (Hart’s
Dep. Tr., Docket Entry 52-6, 36:15-21.)
valid in light of the equipment Stericycle uses.
Stmt. ¶ 101; Pl.’s 56.1 Counterstmt. ¶ 101.)
On June 11, 2013, Kearney sent Navarro an email stating
that LIJ had previously received complaints about Plaintiff and
they continued to receive complaints after she returned to work.
(Def.’s 56.1 Stmt. ¶ 102.)
Kearney further requested that Navarro
“remove [Plaintiff] from the building and provide an alternative.”
(Def.’s 56.1 Stmt. ¶ 102.)
Navarro forwarded Kearney’s email to
(Def.’s 56.1 Stmt. ¶ 103.)
Hart testified that he was
indication that the situation was serious given that Kearney
himself had become involved” rather than his subordinates. (Def.’s
56.1 Stmt. ¶ 104.)
On June 13, 2013, Hart and Navarro met with Kearney.
(Def.’s 56.1 Stmt. ¶ 108.)
Hart testified that Kearney was
“adamant” that Plaintiff be removed.
(Def.’s 56.1 Stmt. ¶ 109.)
Hart further testified that following the meeting, he instructed
Navarro to tell Plaintiff to leave LIJ and not to return to the
facility, and that Hart would contact her or she should contact
Hart. (Def.’s 56.1 Stmt. ¶ 110.) Plaintiff testified that Navarro
told her “[g]ive me your badge. You’re fired.” (Def.’s 56.1 Stmt.
The parties dispute whether Navarro had the authority to
(Def.’s 56.1 Stmt. ¶ 115; Pl.’s 56.1 Counterstmt.
Hart testified that after his meeting with Kearney, he
spoke with Jannotte and they scheduled a meeting with the Union
“to discuss Plaintiff’s removal from the property.”
Stmt. ¶ 118.)
Hart forwarded Marino a copy of Kearney’s email.
(Def.’s 56.1 Stmt. ¶ 119.)
Hart testified that he and Jannotte
decided to fire Plaintiff. (Def.’s 56.1 Stmt. ¶ 120.) The parties
dispute whether Hart relied on Navarro’s complaints in deciding to
Counterstmt. ¶ 122.) However, Hart testified that he did not think
about terminating Plaintiff until he received Kearney’s email.
(Def.’s 56.1 Stmt. ¶ 123.)
Hart also testified that he “did not
consider transferring Plaintiff because she had been removed from
an entire hospital system” and “employees with performance issues
couldn’t be relocated.”
(Def.’s 56.1 Stmt. ¶ 124.)
removal and directed her to contact the Union.
(Def.’s 56.1 Stmt.
Plaintiff contacted Woods and advised that Navarro told
her she was terminated.
(Def.’s 56.1 Stmt. ¶ 126.)
Plaintiff met with Woods, Marino, Jannotte, Hart, and Navarro.
(Def.’s 56.1 Stmt. ¶ 127.)
Prior to the meeting, Plaintiff told
Marino and Woods that the reason Navarro fired her is because “he
wanted to have that sexual [sic] with me and I refused, he ke[pt]
giving me more work, more work, more work and he was angry after
the first meeting.
He kept pushing it more and more.”
56.1 Stmt. ¶ 128.)
At the meeting, Hart presented Plaintiff with Kearney’s
email; however, Plaintiff “believed that Navarro had manipulated
(Def.’s 56.1 Stmt. ¶¶ 129-130.)
The parties dispute
whether Navarro discussed Plaintiff’s performance with Kearney,
and whether Navarro asked Kearney to request Plaintiff’s removal.
(Def.’s 56.1 Stmt. ¶¶ 131-32; Pl.’s 56.1 Counterstmt. ¶¶ 131-32.)
Plaintiff alleges that on June 11, 2013, an LIJ employee sent
(Stericycle)” that stated, in relevant part, “Alex asked [me] to
ask you to email him the info on not wanting Rachel in the
(Pl.’s 56.1 Counterstmt. ¶ 132.)
alleges that he requested that Plaintiff be removed from LIJ “based
on the complaints he received from LIJ employees and based on his
own observations and opinions of Plaintiff’s work performance.”
(Def.’s 56.1 Stmt. ¶ 134.)
On June 24, 2013, Plaintiff’s employment was terminated.
(Def.’s 56.1 Stmt. ¶ 135.)
Plaintiff concedes that Hart did not
harass her, but she alleges that Hart retaliated against her.
(Def.’s 56.1 Stmt. ¶ 137.)
On March 10, 2014, Plaintiff filed a
Employment Opportunity Commission (“EEOC”).
(Def.’s 56.1 Stmt.
demonstrates that there is “no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
FED. R. CIV. P. 56(a).
A genuine factual issue exists where “the
evidence is such that a reasonable jury could return a verdict for
the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed 2d 202 (1986).
determining whether an award of summary judgment is appropriate,
interrogatory responses, and admissions on file, together with
other firsthand information that includes but is not limited to
Nnebe v. Daus, 644 F.3d 147, 156 (2d Cir. 2011).
The movant bears the burden of establishing that there
are no genuine issues of material fact.
Gallo v. Prudential
Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994).
the movant makes such a showing, the non-movant must proffer
specific facts demonstrating “a genuine issue for trial.”
v. Buonnadonna Shoprite LLC, No. 06-CV-5191, 2009 WL 3150431, at
*4 (E.D.N.Y. Sept. 25, 2009) (internal quotation marks and citation
Conclusory allegations or denials will not defeat
However, in reviewing the summary judgment
record, “‘the court is required to resolve all ambiguities and
draw all permissible factual inferences in favor of the party
against whom summary judgment is sought.’”
Sheet Metal Workers’
Nat’l Pension Fund v. Vadaris Tech. Inc., No. 13-CV-5286, 2015 WL
6449420, at *2 (E.D.N.Y. Oct. 23, 2015) (quoting McLee v. Chrysler
Corp., 109 F.3d 130, 134 (2d Cir. 1997)).
The Court construes Defendant’s brief as arguing that
Plaintiff’s Affidavit submitted in conjunction with her opposition
papers, (see Pl.’s Aff., Docket Entry 55), should be disregarded
in whole or in part.
(Def.’s Reply Br., Docket Entry 58, at 1.)
Particularly, Defendant argues that Plaintiff’s Affidavit contains
testimony, and self-serving assertions.”
(Def.’s Reply Br. at 1.)
Federal Rule of Civil Procedure 56(c) provides that
affidavits or declarations used to oppose motions for summary
judgment “must be made on personal knowledge, set out facts that
would be admissible in evidence, and show that the affiant or
declarant is competent to testify on the matters stated.”
CIV. P. 56(c)(4).
The Second Circuit has held that a party cannot
contradicts her prior deposition testimony.
Gorzynski v. JetBlue
Airways Corp., 596 F.3d 93, 104 (2d Cir. 2010).
“If, however, the
allegations in the affidavit, rather than contradicting, explain
or amplify prior deposition testimony, then the affidavit may
Rather than engaging in a line-by-line review, the Court
will disregard any portions of Plaintiff’s Affidavit that “are not
based on personal knowledge or that rely on hearsay or otherwise
M.V.B. Collision, Inc. v. Allstate Ins.
Co., 728 F. Supp. 2d 205, 209 (E.D.N.Y. Jul. 27, 2010).
extent Plaintiff failed to comply with Local Rule 56.1 by failing
to include allegations of disputed material facts in her Rule 56.1
Counterstatement that were included in her affidavit, the Court
will exercise its broad discretion to overlook her non-compliance.
Id. (“[a] district court has broad discretion to determine whether
the overlook a party’s failure to comply with local court rules”)
(internal quotation marks and citation omitted; alteration in
Hostile Work Environment
environment claim by establishing that the conduct at issue: “(1)
is objectively severe or pervasive, that is, . . . the conduct
creates an environment that a reasonable person would find hostile
subjectively perceives as hostile or abusive; and (3) creates such
an environment because of the plaintiff’s sex.”
DeCrescente Distr. Co., Inc., 370 F. App’x 206, 209 (2d Cir. 2010)
This standard necessitates both an objective and
subjective inquiry as “the conduct complained of must be severe or
pervasive enough that a reasonable person would find it hostile or
environment to be abusive.”
Littlejohn v. City of N.Y., 795 F.3d
297, 321 (2d Cir. 2015) (internal quotation marks and citation
To overcome summary judgment, the plaintiff must proffer
discriminatory intimidation, ridicule, and insult, that the terms
and conditions of [her] employment were thereby altered.”
St. Catherine of Siena Medical Ctr., 966 F. Supp. 2d 167, 188-89
(E.D.N.Y. 2013) (internal quotation marks and citation omitted).
In determining whether a work environment is hostile, the Court
examines the totality of the circumstances, which include “‘the
frequency of the discriminatory conduct; its severity; whether it
is physically threatening or humiliating, or a mere offensive
“Courts in this Circuit treat plaintiff’s claims under Title
VII and the [NYSHRL] as analytically identical, applying the
same standard of proof to both claims.” Stella v. Brandywine
Sr. Living, Inc., No. 11-CV-1094, 2012 WL 3764505, at *3
(E.D.N.Y. Jul. 9, 2012), report and recommendation adopted, 2012
WL 3764500 (E.D.N.Y. Aug. 27, 2012) (internal quotation marks
and citations omitted).
(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.
Ct. 367, 371, 126 L. Ed. 2d 295 (1993)).
infrequent, and at worst, mildly offensive conduct,” does not
suffice to raise triable issues of fact regarding an objectively
hostile work environment.
Cristofaro v. Lake Shore Cent. Sch.
Dist., 473 F. App’x 28, 30 (2d Cir. 2012).
The Court finds that Plaintiff has raised issues of fact
on her hostile work environment claim.
approximately two months in 2013.
Plaintiff worked with
As set forth above, Plaintiff
alleges that in 2012, Navarro asked her out, said she looked like
his ex-girlfriend, offered to let her leave early but receive a
full day’s pay if she went out with him, said he wanted to have
sex with her, offered to take Plaintiff to his house in North
Carolina, and told her that she could perform oral sex on him.
(Def.’s 56.1 Stmt. ¶¶ 56, 62, 69, 71.)
avers that Navarro frequently called Plaintiff to see where she
was, and on one occasion, Navarro waited for her outside of the
(Def.’s 56.1 Stmt. ¶¶ 59-60.)
Plaintiff alleges that when she returned to work from
her leave of absence in 2013, Navarro told her she had a “nice
butt” every time he saw her.
(Pl.’s Dep. Tr., Docket Entry 52-5,
291:18-292:2.) Plaintiff also avers that during this time, Navarro
told her “[y]ou have to move faster, you’re going to get fired.
You’re going to regret your life.”
(Pl.’s Dep. Tr. 290:11-22.)
Additionally, Plaintiff alleges that on a couple of occasions,
Navarro referred to her arm and stated “when you get a big arm
like that, no man is going to want you, so you don’t have no
choice, you’re going to sleep with me.”
(Pl.’s Dep. Tr. 339:14-
innocuous,” (Def.’s Br., Docket Entry 52-1, at 7), the Court
Over a total of approximately five months, Navarro
made a number of overtly sexual comments that included express
references to sexual acts and/or a sexual relationship.
is not persuaded by the fact that Navarro allegedly did not harass
Plaintiff during her eleven-month leave of absence, (Def.’s Br. at
7), and finds that his frequent sexual comments during the time
that he and Plaintiff were working together could rise to the level
of a hostile work environment.
See, e.g., Desardouin v. City of
Rochester, 708 F.3d 102, 105-106 (2d Cir. 2013) (holding that a
trial was warranted on the plaintiff’s hostile work environment
claim where her supervisor stated that “her husband was not taking
It is unclear from Plaintiff’s deposition transcript whether
these comments were made in 2012 or 2013.
care of [her] in bed” on a weekly basis for two to three months)
Gorzynski, 596 F.3d at 102 (holding that the plaintiff raised
triable issues of fact on her hostile work environment claim where
the supervisor made approximately six sexual comments, grabbed the
plaintiff and other female employees around the waist and tickled
them, and “mentally undress[ed]” female employees over the course
of seven months); Stella, 2012 WL 3764505, at *4 (holding that
environment claim where the plaintiff alleged that his supervisor,
inter alia, made unwanted sexual advances, tracked [plaintiff] to
secluded locations, “extended professional perks,” and “touched
Faragher/Ellerth Affirmative Defense
Defendant argues that summary judgment is warranted
based on the Faragher/Ellerth defense.
(Def.’s Br. at 8-14.)
In an employment discrimination case where “the alleged
harasser is a supervisor and no tangible employment action is
taken,” the defendant may “escape liability” by asserting the
Faragher/Ellerth affirmative defense and establishing: (1) it
“exercised reasonable care to prevent and correct any harassing
behavior” and (2) “that the plaintiff unreasonably failed to take
advantage of the preventative or corrective opportunities that the
Robinson v. Vineyard Vines, LLC, No. 15-CV-
4972, 2016 WL 845283, at *4 (S.D.N.Y. Mar. 4, 2016) (internal
quotation marks and citations omitted).
To satisfy the second
unreasonably in failing to avail herself of the company’s internal
complaint procedures, and then the burden shifts to the employee
to come forward with one or more reasons why the employee did not
make use of the procedures.”
Grant v. United Cerebral Palsy of
N.Y. City, Inc., No. 11-CV-0018, 2014 WL 902638, at *9 (S.D.N.Y.
Mar. 7, 2014) (internal quotation marks and citation omitted).
Navarro was her supervisor.
(Pl.’s Br., Docket Entry 56, at 9.)
However, the Second Circuit has held that an alleged harasser’s
status as a supervisor does not preclude the defendant-employer’s
ability to assert the Faragher/Ellerth defense.
supervisor, “the objectionable conduct is automatically imputed to
the employer . . . [b]ut even then the defending employer may be
permitted, subject to proof by a preponderance of the evidence, to
raise the Faragher/Ellerth affirmative defense to liability or
Thus, the question of whether Navarro was Plaintiff’s
supervisor is of no moment.5
It is undisputed that Defendant maintained an antisexual harassment policy that contained a complaint procedure, and
Plaintiff received a copy of the Harassment Policy.
Stmt. ¶¶ 9, 11-12, 17.)
Additionally, Defendant maintained a
“Communications Channels” policy that provided employees with a
procedure for reporting “unlawful or unethical situation[s].”
(Def.’s 56.1 Stmt. ¶ 21.)
While not dispositive, the fact that
Defendant promulgated anti-harassment policies “is an important
consideration in determining whether [it] has exercised reasonable
Setelius v. Nat’l Grid Elec. Servs., LLC, No. 11-CV-5528, 2014 WL
4773975, at *26 (E.D.N.Y. Sept. 24, 2014) (internal quotation marks
and citations omitted).
However, “evidence of what an employer does when faced
with an actual complaint is another important factor in determining
whether a defendant can satisfy the first prong of its affirmative
Id. at *27.
Defendant argues that Plaintiff’s
“generalized complaints” did not provide notice that she was
The parties also dispute whether Navarro’s harassment resulted
in a “tangible employment action.” (See Pl.’s Br. at 9; Def.’s
Reply Br. at 4-5). The Court need not determine this issue
because it finds that, as set forth below, “even assuming
[Defendant] can raise the defense at the summary judgment stage,
the defense fails.” Gorzynski, 596 F.3d at 103 n.3.
complaining about sexual harassment and Plaintiff’s deposition
testimony is conflicting as to whether she used the phrase “sexual
harassment” during her 2012 meeting with Hart, Jannotte, Navarro,
Woods, and Marino.
(See Def.’s Br. at 11-12.)
Plaintiff testified that during that 2012 meeting, she stated that
Navarro asked her out, offered to take her to his house in North
Carolina, and detailed “all the things that [Navarro] wanted to
do, that [she] looked like his ex-girlfriend, he loved girls, he
don’t have a wife, that he will take [her] out.”
(Pl.’s Dep. Tr.
While a portion of Plaintiff’s testimony is arguably
inconsistent as to whether she said the words “sexual harassment”
at this meeting, (Pl.’s Dep. Tr. 174:22-175:8), when asked if she
used the phrase “sexual harassment,” Plaintiff responded “yes,”
(Pl.’s Dep. Tr. 175:9-13), and she later indicated that she used
that phrase a “couple times,” (Pl.’s Dep. Tr. 176:24-177:6).
Additionally, Plaintiff testified that during this meeting she
“just ke[pt] saying ‘sexual harassment.’
want to sleep with me.
I kept telling them he
He offered I can leave work early, and he
can pay me less, we can work things out if I agree with him.”
Plaintiff’s testimony, her use of the phrase “sexual harassment”
and disclosure of Navarro’s overtly sexual conduct sufficed to
place Defendant on notice that she was complaining about sexual
Plaintiff’s alleged complaint during the 2012 meeting
was met with total inaction.
While Defendant alleges that the
meeting “was effective” because Navarro did not harass Plaintiff
Plaintiff alleges that Navarro’s harassment continued when she
returned to work in 2013.
(Def.’s 56.1 Stmt. ¶ 94.)
is undisputed that Plaintiff’s request for a different supervisor
was denied, (Def.’s 56.1 Stmt. ¶¶ 75-76), and Defendant did not
investigate Plaintiff’s claims or discipline Navarro in any way.
Defendant also alleges that Plaintiff failed to follow
Environment Policy, arguing that if Plaintiff was dissatisfied
with the outcome of the 2012 meeting, she could have “contacted
anyone in Human Resources or called the Help Line, and indeed, per
the terms of the policies that is exactly what she should have
To the extent that Defendant’s brief can be construed as
arguing that Plaintiff only used the phrase “sexual harassment”
when Hart, Jannotte, and Navarro left the room, (Def.’s Br. at
11 n.2), the Court disagrees. As previously noted, Plaintiff
testified that during the 2012 meeting she used the phrase
“sexual harassment” a “[c]ouple times.” (Pl.’s Dep. Tr. 176:24177:6.) Plaintiff’s testimony that she used the phrase “sexual
harassment” when speaking privately with Woods and Marino,
(Pl.’s Dep. Tr. 181:5-17), does not indicate that she did not
also use this phrase when Hart, Jannotte, and Navarro were
(Def.’s Br. at 12-13.)
However, Defendant’s Harassment
Policy provides, in relevant part, that “[i]f you . . . want to
report an incident of harassment, you should bring this matter to
your immediate supervisor.”
(Harassment Policy, Pl.’s Ex. I,
Harassment Policy also provides that an employee should contact
Human Resources if they are uncomfortable speaking with their
supervisor, Plaintiff need not demonstrate that she pursued the
entire “chain of command.”
Cf. Gorzynski, 596 F.3d at 104-105
(“[w]e do not believe that the Supreme Court, when it fashioned
harassment, in order to preserve their rights, must go from manager
complaints”); Wilkins v. Time Warner Cable, 10 F. Supp. 3d 299,
314-15 (N.D.N.Y. 2014) (holding that the Faragher/Ellerth defense
discrimination claim and noting that the fact that the plaintiff
“did not also contact [Human Resources] directly regarding his
Any dispute as to whether Navarro functioned as Plaintiff’s
supervisor is of no moment as both Navarro and Hart were present
at this meeting and one or both men would be considered to be
Plaintiff’s immediate supervisor.
fear of losing his position does not, as a matter of law, prove
that he acted unreasonably”).
To that regard, while Defendant argues that “no such
facts exist suggesting that any complaints Plaintiff could have
made to [Human Resources], the Help Line, or the other reporting
methods would have been futile,” (Def.’s Reply Br. at 6), the Court
Assuming the truth of Plaintiff’s allegations that she
complained to Hart every day that she worked during 2013, (Pl.’s
Dep. Tr. 297:3-298:2), it is undisputed that Defendant did not
investigate or take action with respect to her complaints and the
Court finds that Plaintiff has raised issues of fact as to whether
her failure to “pursu[e] other avenues” was reasonable. Gorzynski,
596 F.3d at 105 (“the facts and circumstances of each case must be
examined to determine whether, by not pursuing other avenues
provided in the employer’s sexual harassment policy, the plaintiff
argument that Plaintiff “has offered no evidence that after the
2012 meeting with the Union she made any additional complaints to
Hart or any other member of management regarding alleged sexual
harassment by Navarro.”
(Def.’s Br. at 12; see also Def.’s Reply
Br. at 6 (alleging that when she returned from medical leave in
2013, Plaintiff “complained generally about her assigned work and
that Navarro was picking on her” rather than sexual harassment)).
Though thin, as previously noted, Plaintiff testified that she
complained to Hart every day in 2013 and she also asserted that
(Pl.’s Dep. Tr. 297:3-298:2).8
Employer Liability Under the NYSHRL
“Under the NYSHRL, an employer cannot be held liable
. . . for an employee’s discriminatory act unless the employer
became a party to it by encouraging, condoning, or approving it.”
E.E.O.C. v. Suffolk Laundry Servs., Inc., 48 F. Supp. 3d 497, 520
(E.D.N.Y. 2014) (internal quotation marks and citations omitted).
Specifically, “[a]n employer’s calculated inaction in response to
discriminatory conduct may, as readily as affirmative conduct,
Clark v. City of N.Y., No. 13-CV-0210,
quotation marks and citation omitted).
As addressed more fully
The parties dispute whether the Court may consider Plaintiff’s
allegations regarding Navarro’s conduct toward her replacement,
Tiffany Anderson-Moore. (Compare Pl.’s Br. at 13-14; Def.’s
Reply Br. at 5, n.5.) The Court need not determine this issue
in light of its determination that summary judgment on
Plaintiff’s hostile work environment claim is inappropriate.
liability to Defendant for Navarro’s conduct.9
Accordingly, summary judgment on Plaintiff’s Title VII
and NYSHRL hostile work environment claims is DENIED.
Title VII and NYSHRL retaliation claims are analyzed
demonstrate a prima facie retaliation claim.
F.3d 159, 164 (2d Cir. 2010).
Hicks v. Baines, 593
At this stage, the plaintiff’s
burden is “de minimis” and the Court’s role is “to determine only
permit a rational finder of fact to infer a retaliatory motive.”
Id. (internal quotation marks and citation omitted).
plaintiff states a prima facie case, “a presumption of retaliation
arises” and the defendant must set forth a “legitimate, nonretaliatory
(internal quotation marks and citation omitted).
If the defendant
meets that burden, “the presumption of retaliation dissipates, and
Defendant alleges that it may assert the Faragher/Ellerth with
respect to Plaintiff’s NYSHRL claim. (Def.’s Reply Br. at 7.)
“Whether the Faragher/Ellerth defense is available to claims
brought under the NYSHRL is not a fully-settled question.”
Setelius, 2014 WL 4773975, at *29, n.25. However, the Court
need not determine this issue. As set forth above, issues of
fact preclude the application of the Faragher/Ellerth defense at
the employee must show that retaliation was the ‘but-for’ cause of
the challenged employment action.”
Geller v. N. Shore Long Island
(E.D.N.Y. Sept. 23, 2013) (quoting Univ. of Texas SW. Med. Ctr. v.
Nassar, --- U.S. ----, 133 S. Ct. 2517, 2533, 186 L. Ed. 2d 503
plaintiff must demonstrate: “(1) participation in an activity
protected by federal discrimination statute; (2) the defendant was
aware of this activity; (3) an adverse employment action; and (4)
a causal connection between the alleged adverse action and the
Dall, 966 F. Supp. 2d at 192.
Defendant argues that Plaintiff has not established that
she engaged in protected activity.
(Def.’s Br. at 15.)
adverse action,11 but alleges that even if she can demonstrate that
The Court acknowledges that it is unclear whether the “butfor” causation standard set forth in Nassar applies to NYSHRL
claims. Joseph v. Owens & Minor Distr., Inc., 5 F. Supp. 3d
295, 316 n.11 (E.D.N.Y. 2014), aff’d, 594 F. App’x 29 (2d Cir.
2015). However, “since the NYSHRL statutory language is the
same, and the New York Court of Appeals has consistently stated
that Federal Title VII standards are applied in interpreting the
NYSHRL, this Court will continue to interpret the standard for
retaliation under the NYSHRL in a manner consistent with Title
VII jurisprudence as clarified by the Supreme Court in Nassar.”
Plaintiff does not argue that her allegedly increased workload
constitutes an adverse employment action. (See generally Pl.’s
she engaged in protected activity, “there was no causal connection
between any such activity and her termination.”
(Def.’s Br. at
The Court will address protected activities and causation in
A. Protected Activities
opposes statutorily prohibited discrimination.”
Giscombe v. N.Y.
City Dep’t of Educ., 39 F. Supp. 3d 396, 401 (S.D.N.Y. 2014)
activities under Title VII include informal complaints to the
plaintiff’s supervisors, commencing litigation, or filing a formal
However, “[a]n implicit requirement of . . . the
employer understood, or could reasonably have understood that the
plaintiff’s opposition was directed at conduct prohibited by Title
Grant, 2014 WL 902638, at *11 (internal quotation marks and
Plaintiff alleges that she engaged in the following
Br. at 19.) In any event, while “[a]n increase in workload may
be an adverse action for purposes of a retaliation claim if the
increase is heavily disproportionate to those similarly
situated,” Hardial v. EmblemHealth, Inc., No. 14-CV-4968, 2016
WL 3693750, at *12 (E.D.N.Y. Jul. 7, 2016) (internal quotation
marks and citations omitted), the record does not contain any
evidence regarding the workloads of similarly situated
Jannotte during their 2012 meeting with her union representatives,
and (2) telling Navarro in May 2013 that “if he did not leave her
alone, she would get a lawyer,” which Navarro allegedly repeated
to Hart on the phone.
(Pl.’s Br. at 18.)
As set forth more fully above, Plaintiff has raised
issues of fact as to whether she complained about sexual harassment
during her 2012 meeting with Hart, Jannotte, Navarro, Woods, and
To the extent a jury credits Plaintiff’s testimony, she
engaged in a protected activity during this 2012 meeting.
and Jannotte would have reasonably understood that Plaintiff was
opposing conduct prohibited by Title VII based on Plaintiff’s
alleged use of the phrase “sexual harassment” and disclosure of
Navarro’s overtly sexual conduct.
remark to Navarro that she intended to get a lawyer if he did not
leave her alone constitutes a protected activity that Defendant
was aware of.
When asked why she believed she was fired from
Stericycle, Plaintiff testified: “I got fired because Navarro
asked me out and I refused and he started giving me work and work
and work to do and at one point, I got injured at work because he
was pushing me too much and I told him that if he don’t leave me
alone I will get a lawyer.”
(Pl’s Dep. Tr. 82:4-11; see also Pl.’s
[Navarro] ‘If you don’t leave me alone, I’ll get a lawyer.’”).)
Putting aside the parties’ dispute as to when this comment was
made, (see Def.’s Reply Br. at 8), this non-specific remark would
opposing statutorily prohibited conduct--namely, Navarro’s sexual
harassment and/or alleged retaliation for Plaintiff’s complaints.
retaliation claim, Defendant has proffered a legitimate, nondiscriminatory reason for terminating Plaintiff.
Cf. Boston v.
Taconic Mgmt. LLC, No. 12-CV-4077, 2016 WL 5719751, at *5 (S.D.N.Y.
Sept. 30, 2016) (noting, in its discussion of the plaintiff’s
discrimination claim, that “the court may assume that a plaintiff
has established a prima facie case and skip to the final step in
the analysis, as long as the employer has articulated a legitimate
(internal quotation marks and citation omitted).
Defendant points to Kearney’s email to Navarro stating that LIJ
had received complaints about Plaintiff and requesting that she be
removed from the building.
(Def.’s Br. at 19-20.)
dissatisfaction” was a legitimate, non-retaliatory reason for the
Whether Plaintiff has raised issues of fact regarding
pretext presents a closer issue.
Plaintiff principally argues
that Navarro assigned her more work than she could handle and
“manipulated Kearney into blaming [Plaintiff] for mistakes that
were not her fault.”
(Pl.’s Br. at 21.)
Plaintiff refers to
Navarro’s email to Kearney’s assistant stating that Navarro asked
her to request that Kearney “email him the info on not wanting
[Plaintiff] in the building.”
(Pl.’s Br. at 22.)
alleges that Kearney’s assertion that there were no complaints
about Defendant’s services at Katz during Plaintiff’s medical
leave is belied by emails in the record.
(Pl.’s Br. at 22.)
Additionally, Plaintiff avers that she would not have been assigned
three additional days at LIJ in 2013 if there had been complaints
about her in 2012.
(Pl.’s Br. at 23.)
However, Plaintiff effectively concedes that Hart and
Jannotte made the ultimate decision to terminate her, not Navarro.
(Def.’s 56.1 Stmt. ¶ 120.)12
In light of the absence of any
evidence that Hart or Jannotte harbored retaliatory animus, it
appears that Plaintiff is essentially arguing that the theory of
In her Rule 56.1 Counterstatement, Plaintiff does not dispute
that Hart “testified” that he and Jannotte made the ultimate
decision to terminate her. (Pl.’s 56.1 Counterstmt. ¶ 120;
Def.’s 56.1 ¶ 120.) However, aside from Plaintiff’s allegation
that “Hart was manipulated into firing her,” (Pl.’s 56.1
Counterstmt. ¶ 121), Plaintiff has not alleged that another
individual at Stericycle, i.e., Navarro, was actually
responsible for the decision to terminate her. The record
similarly does not contain any evidence to refute the notion
that Hart and/or Jannotte ultimately decided to terminate
Plaintiff. Thus, the Court finds that there are no factual
disputes on this issue.
“cat’s paw” liability is applicable based on Navarro’s alleged
manipulation of Hart and/or Kearney.
“Cat’s paw” liability “refers to a situation in which an
employee is fired . . . by a supervisor who himself has no
discriminatory motive but who has been manipulated by a subordinate
who does have such a motive and intended to bring about the adverse
Vasquez v. Empress Ambulance Servs., Inc.,
835 F.3d 267, 271 (2d Cir. 2016).
In Vasquez, the plaintiff
alleged that within hours of reporting her coworker’s sexual
harassment, the coworker presented management with manipulated
pictures and text messages indicating that he and the plaintiff
had engaged in a sexual relationship and the plaintiff had sent
him a “racy, self-taken photo.”
Hours later, a committee
concluded that the plaintiff and the coworker had an inappropriate
The employer declined to show the
plaintiff the photograph in question or review the plaintiff’s
phone, and fired the plaintiff for sexual harassment.
Id. at 270-
The Second Circuit held that the “cat’s paw” theory may
be used to support Title VII retaliation claims and the plaintiff
“pled facts from which a reasonable person could infer that [the
accusations were the product of retaliatory intent and thus should
not have been trusted.”
Id. at 273, 276.
However, the Court noted
that an employer is not liable merely because it took action based
on information provided by a biased employee as “[o]nly when an
employer in effect adopts an employee’s unlawful animus by acting
employee, and thereby affords that biased employee an outsize role
in its own employment decision, can the employee’s motivation be
imputed to the employer[.]”
Id. at 275 (emphasis in original).
Here, the impetus for Plaintiff’s termination was an
email from Kearney, a third-party not employed by Stericycle, who
allegedly acted on information provided by Navarro.
Email, Pl.’s Ex. E, 55-5.)
Kearney testified in an Affidavit that
he spoke with Navarro and requested that Plaintiff be removed from
LIJ “based on the complaints [he] received from LIJ employees and
based on [his] own observations and opinions of Plaintiff’s work
(Kearney Aff., Def.’s Ex. 4, Docket Entry 52-7,
Kearney also alleges that he did not receive any
complaints about sharps services at Katz while Plaintiff was on
(Kearny Aff. ¶ 12.)
Plaintiff attempts to discredit Kearney by alleging that
there were, in fact, complaints during her leave of absence.
(Pl.’s Br. at 22 (citing Pl.’s Ex. H, 55-8).)
However, the emails
cited by Plaintiff do not demonstrate that there were complaints
about Stericycle employees at Katz.
Many of these emails pertain
to the emergency room unit, and the emails relating to Katz and/or
the Labor and Delivery unit address the frequency of sharps
pickups, supply issues, and an issue regarding the sizing of sharps
(Pl.’s Ex. H.)
The one email that could arguably be
construed as a complaint was Navarro’s email sent on May 7, 2013-after Plaintiff had returned to work--in which he states “Katz
Women’s Hospital OR Dep’t 3rd Fl – Tower Full of trash.”13
Ex. H at 12.)
Plaintiff also argues that the “Employee Communications
Notices” that Navarro prepared documenting her alleged infractions
complaints from LIJ.
(Pl.’s Br. at 23; see also Employee Notices,
Pl.’s Ex. D, Docket Entry 55-4.)
However, these Employee Notices
are dated between March 29, 2012, and April 17, 2012.14
continued working at LIJ until she began her leave of absence on
May 23, 2012 and Plaintiff resumed working at LIJ when she returned
The factual dispute as to whether Kearney personally observed
Plaintiff, (see Pl.’s Br. at 22 (“Kearney’s claim that he
occasionally saw [Plaintiff] at work is incorrect, as
[Plaintiff] had no interaction with Kearney”) (internal
quotation marks and citation omitted)), is of little relevance
to the issue of pretext based on Kearney’s testimony that he
also relied on LIJ employees’ observations and complaints in
requesting Plaintiff’s removal. (See Kearney Aff. ¶¶ 16-18.)
The Court notes that one Employee Notice is dated April 12,
2010. (Employee Notices at 4.)
As it is undisputed that
Plaintiff and Navarro did not begin working together until early
2012, (Def.’s 56.1 Stmt. ¶¶ 31, 34-35), the Court assumes that
this Employee Notice contains a typographical error and was
prepared on April 12, 2012.
to work on April 29, 2013.
(See Def.’s 56.1 Stmt. ¶ 81.)
these Employee Notices do not address the time that Plaintiff was
working at LIJ between April 18, 2012 and May 22, 2012.
regard, while Plaintiff attempts to raise issues of fact by noting
notwithstanding the alleged prior complaints about her, (Pl.’s Br.
at 22-23), Hart testified that Navarro advised him that LIJ had
complained about Plaintiff but Stericycle had to investigate the
complaints about Plaintiff to determine “what the problems are, if
the problems are correctable or not,” (Hart’s Dep. 65:18-66:13).
5460654 (Sept. 30, 2013), a Title VII pregnancy discrimination
case, for the proposition that the denial of summary judgment is
appropriate “where the plaintiff was fired based on a customer
(Pl.’s Br. at 22 (internal quotation marks omitted).)
However, in Dominick, the plaintiff alleged that her supervisor
told her he did not have any issues with her work, another
supervisor asked her to stay an additional month, and she had
received positive feedback.
Dominick, 2013 WL 5460654, at *9.
evaluations indicated low performance in some areas, they also
reflected strength in other areas.
Notably, the Dominick
employer provided the plaintiff with conflicting reasons for her
Id. at *10.
In the case at bar, while Plaintiff
received a safety award in 2010, (Pl.’s Ex. B, Docket Entry 552), Plaintiff has not proffered evidence that she received positive
Further, Plaintiff has not alleged that
she received conflicting explanations for her termination.
Additionally, Plaintiff alleges that Navarro “set [her]
up to fail by giving her more work than anyone could possibly do,
so that she was more likely to make mistakes, and blaming her for
mistakes that other people made.”
(Pl.’s Br. at 21.)
Plaintiff has not adduced any evidence to support the notion that
she was assigned an insurmountable workload or that her colleagues’
mistakes were attributed to her.
While Plaintiff testified that
Navarro changed her schedule to require that she service Katz in
four hours, rather than eight, the record does not contain any
information regarding the amount of work assigned to similarly
Plaintiff has also failed to provide any specific examples of
Plaintiff also submitted a document titled “Employee Work
Instructions” and dated April 17, 2012. (Employee Instr., Pl.’s
Ex. C, Docket Entry 55-3.)
While this document directs
Plaintiff to service six floors of the Katz building in four
hours, it also states “[w]ith small Internal Cart filled all
floors can be serviced without returning to supply staging area.
This will save major time in service.” (Employee Instr.)
incidents where she was wrongly blamed for another employee’s
Even assuming, arguendo, that Kearney’s request for
Plaintiff’s removal was based on biased information provided by
Navarro, the record does not contain any facts that would indicate
Hart and/or Jannotte acted negligently in terminating Plaintiff
based on Kearney’s email. See Vasquez, 835 F.3d at 275.
Plaintiff argues that Navarro was involved in the decision to
terminate her employment based on his discussions with Kearney and
Hart, she has not adduced evidence that would raise issues of fact
as to whether Navarro “had significant influence over the chain of
events that resulted in Plaintiff’s termination.”
Mark 2 Restaurant LLC, No. 14-CV-4560, 2016 WL 4992582, at *12
(S.D.N.Y. Sept. 15, 2016).
Potential hearsay issues aside, while
Plaintiff places great weight on an email from an LIJ employee to
Kearney stating, “[Navarro] asked me to ask you to email him the
info on not wanting [Plaintiff] in the building,” (Pl.’s Ex. F,
Docket Entry 55-6), the Court is not persuaded that Navarro’s
alleged request that Kearney send him an email raises issues of
Plaintiff testified that Navarro told her that Kearney
complained about her but when she went to LIJ to find about the
complaint, “I find out it’s another building and not one of the
supervisors come to me once to ask me which building did I
serve.” (Pl.’s Dep. Tr. 84:9-86:5.) Putting aside any hearsay
concerns, this allegation is too vague to raise issues of fact
as to whether Navarro blamed Plaintiff for other employees’
fact regarding his influence over Kearney in light of Kearney’s
removal was based on his observations and information he received
from LIJ staff (Kearney Aff. ¶¶ 15, 17-18).
Navarro testified that he forwarded information to his superiors
and when they asked him what happened with Plaintiff, he stated
that he did not like Plaintiff’s work ethic, he also testified
that he did not tell anyone that he did not like Plaintiff’s work
and he was not aware who made the decision to terminate Plaintiff.
(Navarro’s Dep. Tr., Pl.’s Ex. 5, Docket Entry 52-8, 123:21-12.)
Plaintiff appears to argue the gap of time between her
removal from LIJ and her termination raises questions as to whether
Kearney’s email was the actual reason she was fired.
at 24; see also Def.’s 56.1 Stmt. ¶¶ 108, 135.) The record reflects
that Kearney sent his email on June 11, 2013; Hart and Navarro met
with Kearney on June 13, 2013; Plaintiff was told to leave LIJ on
Plaintiff met with Woods, Marino, Jannotte, Hart, and Navarro, at
which time she was presented with Kearney’s email.
approximately eleven days between Plaintiff’s removal from LIJ and
negligently, as Hart had multiple meetings about Kearney’s email
prior to terminating Plaintiff.
Cf. Taconic Eastchester Mgmt.,
2016 WL 5719751, at *8 (rejecting the plaintiff’s cat’s paw theory
where, inter alia, the record did not indicate that the defendant
“‘blindly credited’” the allegedly biased employee’s comments in
deciding to terminate the plaintiff).
terminated rather than transferred, Hart testified that Stericycle
did not consider transferring Plaintiff because she was removed
from an entire hospital system and employees with “bad performance”
could not be relocated. (Hart.’s Dep. Tr. 60:7-15.) In any event,
Defendant’s decision to terminate Plaintiff rather than transfer
her is a business decision that the Court is not prepared to
See Joseph, 5 F. Supp. 3d at 319 (noting that courts
are not empowered to “sit as super personnel departments, assessing
nondiscriminatory business decisions”) (internal quotation marks
and citation omitted).
suggested by Plaintiff in arguing that Defendant’s failure to
provide her with an opportunity to “defend herself” prior to her
termination leads to the conclusion that Navarro “intentionally
creat[ed] an issue that he could use to fire [Plaintiff].”
Br. at 23.)
Plaintiff cites Palumbo v. Carefusion 2200, Inc., No.
12-CV-6282, 2014 WL 3921233 (W.D.N.Y. Aug. 11, 2014), an ADEA case,
for the notion that the failure to conduct a thorough investigation
and provide the plaintiff with an “‘adequate opportunity to present
her side of the story’” supports the inference that the “‘stated
reasons for Plaintiff’s termination were pretextual.’”
at 23 (citing Palumbo, 2014 WL 3921233, at *12).)
allegations supporting pretext, not the least of which being that
the defendant alleged that it placed the plaintiff on a performance
improvement plan due to customer complaints but the defendant
failed to reference the alleged customer complaints during an
earlier proceeding before the New York State Division of Human
Palumbo, 2014 WL 3921233, at *11-12.
record contained evidence raising issues of fact as to whether
decision to terminate the plaintiff was made prior to one of the
Id. at *12-13.
In the case at bar, Plaintiff met with Hart, Jannotte,
Navarro, Woods, and Marino after Navarro allegedly told her that
she was fired but before she was formally terminated on June 23,
(Def.’s 56.1 Stmt. ¶¶ 110-14, 127, 135.)
Thus, it is
unclear whether Plaintiff was provided with an opportunity to
In any event, even if Defendant’s investigation
of Kearney’s complaint was inadequate based on their failure to
interview Plaintiff before deciding to terminate her, the Court
finds that a reasonable juror could not conclude that “but-for”
Navarro’s retaliation, Plaintiff would not have been terminated.
Accordingly, Defendant’s motion for summary judgment is GRANTED as
to Plaintiff’s Title VII and NYSHRL retaliation claims.
summary judgment (Docket Entry 52) is GRANTED IN PART and DENIED
Defendant’s motion is DENIED with respect to Plaintiff’s
Title VII and NYSHRL hostile work environment claims and GRANTED
with respect to Plaintiff’s Title VII and NYSHRL retaliation
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
13 , 2017
Central Islip, New York
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