Bamba v. Fenton et al

Filing 129

MEMORANDUM & ORDER granting #109 Motion for Summary Judgment; denying #114 Motion for Summary Judgment; For the foregoing reasons, Defendants' motion for summary judgment (Docket Entry 109) is GRANTED and Plaintiff's motion for summary judgment (Docket Entry 114) is DENIED. The Clerk of the Court is directed to enter judgment accordingly and mark this case CLOSED. The Clerk of the Court is further directed to mail a copy of this Memorandum and Order to the pro se Plaintiff. So Ordered by Judge Joanna Seybert on 8/10/2017. C/M; C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------x
N’DAMA MIANKANZE BAMBA,
Plaintiff,
-against-

MEMORANDUM & ORDER
15-CV-1340(JS)(AKT)

KIMBERLY FENTON and STONY BROOK
UNIVERSITY HOSPITAL,

Defendants.
---------------------------------------x
APPEARANCES
For Plaintiff:
N’Dama Miankanze Bamba, pro se
3600 Rosedale Road
Baltimore, MD 21215
For Defendants:

Ralph Pernick, Esq.
Christina H. Bedell, Esq.
New York State Attorney General
200 Old Country Road, Suite 240
Mineola, NY 11501

SEYBERT, District Judge:
Plaintiff N’Dama Miankanze Bamba (“Plaintiff” or “Dr.
Bamba”)

commenced

Fenton”)

and

this

Stony

action

Brook

against

University

Kimberly
Hospital

Fenton

(“Dr.

(“SBUH”

and,

collectively, “Defendants”) asserting claims pursuant to Title VII
of the Civil Rights Act of 1964 (“Title VII”) and 42 U.S.C. § 1981
(“Section

1981”).1

Presently

pending

before

the

Court

are

Defendants’ motion for summary judgment (Defs.’ Mot., Docket Entry

1

Plaintiff has expressly represented that she is not asserting any claims
pursuant to 42 U.S.C. § 1983 (“Section 1983”) and she is only asserting
claims pursuant to Title VII and Section 1981. (Pl.’s Opp. Br., Docket Entry
117, at 7.) As addressed more fully infra, Plaintiff’s purported Section
1981 claim must be construed as a Section 1983 claim.

109) and Plaintiff’s motion for summary judgment (Pl.’s Mot.,
Docket Entry 114).

For the following reasons, Defendants’ motion

is GRANTED and Plaintiff’s motion is DENIED.
BACKGROUND2
Plaintiff, an African-American woman, was employed at
SBUH as an Assistant Clinical Instructor/Resident Physician for
the Combined Internal Medicine/Pediatrics Residency Program (the
“Meds Peds Program”) from July 2011 through August 2013.
56.1 Stmt. ¶¶ 1-2.)

(Pl.’s

The Meds Peds Program Directors considered

2

The following facts are drawn from the parties’ 56.1 Statements. All
disputes have been noted and all internal quotation marks and citations have
been omitted. References to the record are as follows: Defendants’ Rule 56.1
Statement, (“Defs.’ 56.1 Stmt.,” Docket Entry 103-1); Plaintiff’s Rule 56.1
Statement, (“Pl.’s 56.1 Stmt.,” Docket Entry 103-2); Defendants’ Rule 56.1
Counterstatement, (“Defs.’ 56.1 Counterstmt,” Docket Entry 103-3);
Plaintiff’s Rule 56.1 Counterstatement, (“Pl.’s 56.1 Counterstmt.,” Docket
Entry 103-4); Defendants’ Memorandum in Support of Summary Judgment, (“Defs.’
Br.,” Docket Entry 109-1); Plaintiff’s Memorandum in Support of Summary
Judgment, (“Pl.’s Br.,” Docket Entry 114-1); Defendants’ Memorandum in
Opposition, (“Defs.’ Opp. Br.,” Docket Entry 115); Plaintiff’s Memorandum in
Opposition, (“Pl.’s Opp. Br.,” Docket Entry 117 at 2-34); Defendants’
Memorandum in Reply, (“Defs.’ Reply Br.,” Docket Entry 118); Dr. Fenton’s
Deposition Transcript (“Fenton’s Dep. Tr.,” Docket Entry 114-11); Jean
Segall’s Deposition Transcript (“Segall’s Dep. Tr., Docket Entry 110);
Plaintiff’s EEOC Complaint dated May 17, 2013 (“2013 EEOC Compl.,” Docket
Entry 109-17, at P:5-916-P:5-919); Plaintiff’s EEOC Complaint dated
October 15, 2014 (“2014 EEOC Compl.,” Docket Entry 109-17, at P:5-899-P:5906); N.Y. State Physician’s Board Complaint (“NYSPB Compl.,” Docket Entry
109-17, at P:5-920); EEOC Memorandum (“EEOC Memo,” Docket Entry 109-17, at
P:5-910 to 5-913); Letter to EEOC dated October 15, 2014, (“Oct. 2014 EEOC
Ltr.,” Docket Entry 109-21); Right to Sue Letter dated November 20, 2013
(“2013 Right to Sue Ltr., Docket Entry 109-17); Notice of Charge dated
June 13, 2013 (“2013 Notice of Charge, Docket Entry 109-17, at P:5-914); ABP
letter dated April 21, 2014 (“ABP Ltr.,” Docket Entry 109-15, at P:5-94);
Termination Letter dated June 20, 2013 (“Termination Ltr.,” Docket Entry 10917 at P:5-896); Evaluation for January 1, 2013, to June 30, 2013 (“Kranz
Eval.,” Docket Entry 109-15, at P:5-17 to P:5-19); Maryland Board of
Physicians Verification of Postgraduate Medical Education (“Maryland Ver.
Form, Docket Entry 109-15, at P:5-109 to 5-111.); Letter dated October 8,
2014 (“Oct. 2014 Ltr.,” Docket Entry 109-21, at BAMBA-734); Emails between
Plaintiff and Mr. Djuricich (“Djuricich Emails,” Docket Entry 114-7, at P:51047 to 5-1048.); Email from Dr. Blair to Jean Segall (“Blair Email,” Docket
Entry 109-18, at BAMBA-1.).

2

Plaintiff’s evaluations for the 2011-2012 period to be “very good
to excellent.”

(Pl.’s 56.1 Stmt. ¶ 6.)

Plaintiff expected to

complete her residency training on or about June 30, 2015.

(Pl.’s

56.1 Stmt. ¶ 24.)
I.

Dr. Fenton
Plaintiff

alleges

that

Dr.

Fenton

reported

to

the

Accreditation Council for Graduate Medical Education (“ACGME”)3 as
the Program Director of the Meds Peds Program.
¶ 3.)

(Pl.’s 56.1 Stmt.

However, Defendants allege that Dr. Fenton is Co-Director

of the Meds Peds Program and “was listed as the administrative
director solely to satisfy ACGME requirements, which require a
single

director

for

contact

and

information

transmission

purposes.” (Defs.’ 56.1 Counterstmt. ¶ 3.) Dr. Fenton also served
as Chair of the Meds Peds Program Review Committee during 2012
through 2013.

(Pl.’s 56.1 Stmt. ¶ 7.)

Plaintiff alleges that pursuant to ACGME policy and
“Stony Brook GME4 policy,” the program director has discretion with
respect

to

physicians.

promotion
(Pl.’s

and
56.1

disciplinary
Stmt.

¶

5.)

measures

for

Defendants

resident
aver

that

“[p]romotion, advancement and assessing competencies of residents

3

The parties agree that “ACGME governs and accredits residency training
programs across the United States.” (Pl.’s 56.1 Stmt. ¶ 4; Defs.’ 56.1
Counterstmt. ¶ 4.)

4

GME is an abbreviation for “Graduate Medical Education.”
iii.)

3

(Pl.’s Br. at

are determined by a Resident Oversight Committee, not solely upon
the discretion of the program director.” (Defs.’ 56.1 Counterstmt.
¶ 5.)
II.

Letters of Warning and Probation
In March 2012, Plaintiff completed an ACGME survey and

an in-house survey.

(Defs.’ 56.1 Stmt. ¶ 40.)

that these surveys were anonymous.

Defendants allege

(Defs.’ 56.1 Stmt. ¶ 40.)

Plaintiff alleges that the ACGME provides that their evaluations
are “confidential NOT anonymous,” and Dr. Fenton told Plaintiff
and other resident physicians that their comments on these surveys
could be identified.

(Pl.’s 56.1 Counterstmt. ¶ 40.)

On August 6, 2012, SBUH issued Plaintiff a Letter of
Warning

based

recently,

on

“recurrent

unexcused

episodes

absenteeism”

(Defs.’ 56.1 Stmt. ¶ 17.)

of

(the

tardiness,

“Letter

of

and

more

Warning”).

Plaintiff alleges that the Letter of

Warning was issued by Dr. Fenton and former Co-Program Director
Dr. Reilly.

(Pl.’s 56.1 Counterstmt. ¶ 17.)

Particularly, the

Letter of Warning indicated that Plaintiff was absent from or late
to an elective and continuity clinics, and missed a mandatory
event.

(Defs.’ 56.1 Stmt. ¶ 18.)

Plaintiff disputes these

allegations and alleges, among other things, that she obtained
approval to miss her elective.

(Pl.’s 56.1 Stmt. ¶ 18.)

Defendants allege that the “Letter of Warning contained
specific suggestions for improvement and the time frame within
4

which [Plaintiff] was required to do so.”
20.)

(Defs.’ 56.1 Stmt. ¶

Plaintiff disputes this allegation and avers that the letter

does not contain a timeframe; however, Plaintiff concedes that the
letter states “[y]ou must comply with the following measures . .
. [y]ou MUST have no further episodes of unexcused tardiness or
absenteeism and must attend all mandatory conferences as outlined
in your schedule.

In addition, you will maintain current and

complete medical records[.]”
Plaintiff

alleges

physicians

with

that

(Pl.’s 56.1 Counterstmt. ¶ 20.)

while

substandard

SBUH

requires

performance

be

that

provided

resident
with

an

“Explicit Remediation Plan,” she was not provided with any such
plan.

(Pl.’s 56.1 Counterstmt. ¶ 21.)
Defendants

allege

that

Plaintiff

was

late

on

three

occasions during September 2012; however, Plaintiff disputes that
allegation.
¶ 24.)

(Defs.’ 56.1 Stmt. ¶¶ 23-24; Pl.’s 56.1 Counterstmt.

On October 4, 2012, Plaintiff was placed on probation.

(Defs.’ 56.1 Stmt. ¶ 25.)

Defendants allege that Plaintiff was

placed on probation for violating the Letter of Warning’s directive
that

she

not

absenteeism.

have

any

additional

episodes

(Defs.’ 56.1 Stmt. ¶ 25.)

of

tardiness

or

Plaintiff disputes that

she was placed on probation for these deficiencies and alleges
that her placement on probation “coincided with an e-mail the
Plaintiff sent to Dr. Fenton and Co-Director Dr. Reilly about

5

inconsistencies in the Training Program’s evaluation process.”
(Pl.’s 56.1 Counterstmt. ¶ 25.)
III.

Second Probation
In January 2013, Plaintiff was placed in good standing,

which Plaintiff alleges indicates that she did not “have any
deficiency in ACGME Core Competency and was no longer on a Letter
of Probation or Letter of Warning.” (Defs.’ 56.1 Stmt. ¶ 26; Pl.’s
56.1 Counterstmt. ¶ 26.)

On January 28, 2013, SBUH provided

Plaintiff with an offer of appointment to Third-Year Residency
Level Training in the Med Peds Program for July 1, 2013 through
June 30, 2014.

(Pl.’s 56.1 Stmt. ¶ 9.)

Defendants allege that on

January 31, 2013, Plaintiff submitted a grant even though she was
told not to do so without her mentor’s approval.
Stmt. ¶ 27.)
initial

(Defs.’ 56.1

Plaintiff alleges that Dr. Fenton “was aware of the

preparation,

planning

and

submission

of

Plaintiff’s

American Academy of Pediatrics (AAP) Resident CATCH Grant.” (Pl.’s
56.1 Stmt. ¶ 11.)
On
supervisory

or

about

privileges

March
for

14,

2013,

pediatric

Plaintiff

clinical

was

rotations

given
and

continued to possess supervisory privileges for internal medicine
clinical rotations.

(Pl.’s 56.1 Stmt. ¶ 12.)

On May 2, 2013,

Plaintiff was placed on probation for a second time.
Stmt. ¶ 28.)
her

(Defs.’ 56.1

Defendants allege that “deficiencies were noted with

performance

in

professionalism,
6

patient

care,

medical

knowledge, interpersonal and communication skills, [and] practice
based learning,” and Plaintiff’s unprofessionalism “related to
unexcused absences, tardiness, [ ] overdue dictation . . . [and]
unprofessional behavior with regard to a scholarly project grant
submission.”

(Defs.’ 56.1 Stmt. ¶¶ 28-29.)

Plaintiff alleges

that the timing of her second placement on probation coincided
with her completion of an ACGME survey.
¶ 28.)

(Pl.’s 56.1 Counterstmt.

Plaintiff notes that she was considered to be in good

standing as of January 2013, and Dr. Fenton decided not to give
her a Letter of Warning or Letter of Probation in February 2013,
when she became aware of the issues regarding Plaintiff’s grant.
(Pl.’s 56.1 Counterstmt. ¶¶ 26-27.)
Plaintiff also received an “On the Fly Evaluation” and
SBUH

notified

critically

her

assessing

that
an

she

possessed

evolving

“deficienc[ies]

situation

and

relying

with
on

assessments from other personnel[,] . . . does not recognize the
limits of her knowledge which puts patients at risk . . . [and]
there has been patient dissatisfaction [due to] an overconfident
demeanor displayed in front of patients/families, without adequate
information.”
original).)
May 2, 2013.
¶ 14.)

(Defs.’ 56.1 Stmt. ¶ 30 (first alteration in
Plaintiff’s supervisory privileges were revoked on
(Pl.’s 56.1 Stmt. ¶ 14; Defs.’ 56.1 Counterstmt.

However, Plaintiff alleges that she “received a series of

positive evaluation[s] from May 2013 to August 2013.”
7

(Pl.’s 56.1

Counterstmt. ¶ 32.)

Additionally, on June 1, 2013, Plaintiff was

reappointed to Third Year Resident in the Meds Peds Program for
July 2013 through June 2014.
IV.

(Pl.’s 56.1 Stmt. ¶ 15.)

Plaintiff’s Termination
On June 13, 2013, Dr. Fenton rescheduled her semi-annual

Program

Director’s

Meeting

with

Plaintiff

and

restricted

Plaintiff’s clinical responsibilities in the Pediatrics Emergency
Department.

(Pl.’s 56.1 Stmt. ¶ 18.)

On June 17, 2013, Dr.

Kimberly Kranz updated an evaluation “suggesting the Plaintiff’s
performance rating is Unsatisfactory in all six (6) ACGME Core
Competencies measures.”

(Pl.’s 56.1 Stmt. ¶ 19.)

released her evaluation on July 1, 2013.

Dr. Kranz

(Pl.’s 56.1 Stmt. ¶ 19.)

On June 20, 2013, Plaintiff received a letter from SBUH
stating that she would be terminated effective August 31, 2013
(the “Termination Letter”).

(Defs.’ 56.1 Stmt. ¶ 33.)

Defendants

allege that the decision to terminate Plaintiff was made after the
Medical Pediatrics Review Committee “reviewed the concerns and
evaluations of the Plaintiff, and [determined] that [P]laintiff
had failed to meet the requirements of remediation.”
Stmt.

¶

37.)

Plaintiff

alleges

that

there

(Defs.’ 56.1
are

many

“inconsistencies in the evaluation process the Defendants allege
they utilized to evaluate the Plaintiff during her employment at
the SBUH Training Program.”

(Pl.’s 56.1 Counterstmt. ¶ 37.)

8

The
Pediatrics

Termination

Review

Letter

Committee

states

recommended

that
that

the

Medical

Plaintiff

“not

receive credit for the 2012-2013 academic year by the American
Board of Pediatrics and the American Board of Internal Medicine.”
(Defs.’ 56.1 Stmt. ¶ 34.)

Plaintiff “disputes who specifically

made the recommendation to the American Board of Pediatrics,” and
alleges

that

ten

months

later,

Dr.

Fenton

recommended

that

Plaintiff not receive credit for the 2012-2013 academic year.
(Pl.’s 56.1 Counterstmt. ¶ 34.)
SBUH GME Policy sets forth the following procedure for
terminating a resident physician: (1) the Program Director or Chair
provides notice of termination, (2) the Chair of the Graduate
Medical Education Council (“GMEC”)5 reviews the decision and issues
a written determination, (3) if the resident physician objects to
the Chair of the GMEC’s decision, an ad hoc committee is formed to
determine whether the resident physician should be terminated, and
(4) the ad hoc committee forwards its recommendations to the Chair
of the GMEC, and the Chair convenes a meeting to review the ad hoc
committee report and render a final determination.

(Pl.’s 56.1

Stmt. ¶ 21.)
On or about June 26, 2013, Plaintiff submitted an appeal
of

her

termination

to

Dr.

Schiavone,

5

Vice

Dean

for

Medical

Defendants define the GMEC as the Graduate Medical Education Committee.
(Defs.’ 56.1 Stmt. ¶ 38.)

9

Education and Chair of the GMEC Grievance Procedures.

(Pl.’s 56.1

Stmt. ¶ 22; Defs.’ 56.1 Stmt. ¶ 38.) On July 1, 2013, Dr. Schiavone
informed Plaintiff that an ad hoc committee would be formed to
review her termination.

(Pl.’s 56.1 Stmt. ¶ 23.)

The Ad Hoc

Appeals Committee conducted a hearing and recommended to the GMEC
that Plaintiff be terminated effective August 31, 2013.
56.1 Stmt. ¶ 39.)

(Defs.’

Plaintiff alleges that Dr. Schiavone failed to

follow SBUH’s rules for grievances and due process insofar as he
formed the ad-hoc committee “without providing his written notice
to

uphold

the

Program

Director’s

decision

to

terminate

the

Plaintiff”; however, Plaintiff concedes that Dr. Schivone rendered
a final decision indicating that he concurred with the committee’s
recommendation.

(Pl.’s 56.1 Counterstmt. ¶ 39.)

Plaintiff was

terminated from the SBUH Med Peds Program effective August 31,
2013.

(Pl.’s 56.1 Stmt. ¶ 25.)

Plaintiff

received

unsatisfactory.

an

In her Final Evaluation Form,

overall

performance

rating

of

(Pl.’s 56.1 Stmt. ¶ 26.)

Plaintiff

received

following her termination.

unemployment

insurance

(Pl.’s 56.1 Stmt. ¶ 27.)

benefits
Plaintiff

alleges that since she was terminated by SBUH, she “has been unable
to

resume

and/or

complete

residency

training

in

Medicine/Pediatrics Program and/or any other specialty.”
56.1 Stmt. ¶ 32.)

Internal
(Pl.’s

Defendants allege that Plaintiff has worked as

a disabilities services consultant, performed clinical research,
10

and obtained a master’s degree in public health.

(Defs.’ 56.1

Counterstmt. ¶ 32.)
V.

Dr. Fenton’s 2014 Evaluation
Plaintiff alleges that on or about April 21, 2014, Dr.

Fenton submitted an “adverse evaluation” of Plaintiff to the
American Board of Pediatrics (“ABP”) and “recommended that the
Plaintiff receive an evaluation rating of ‘Unsatisfactory’ for
Professional Evaluation and ‘Marginal’ for Clinical Evaluation.”
(Pl.’s 56.1 Stmt. ¶ 28.)

A resident physician who receives an

unsatisfactory performance rating in “ACGME Core Competency of:
Professionalism/Professional

Evaluation”

is

not

eligible

to

receive credit for work or training completed during the academic
period.
VI.

(Pl.’s 56.1 Stmt. ¶ 29.)

EEOC Complaints
Defendants

questionnaire
Commission

allege

forms

(“EEOC”),

that

with

the

which

were

Plaintiff
Equal

filed

Employment

treated

as

two

intake

Opportunity

charges;

however,

Plaintiff alleges that she is “uncertain” whether her first EEOC
questionnaire

form

Counterstmt. ¶ 4.)

was

treated

as

an

EEOC

charge.

(Pl.’s

Plaintiff’s first EEOC charge was signed on

May 17, 2013, and received by the EEOC on May 23, 2013 (the “2013
EEOC Complaint”).
Compl.)

(Defs.’ 56.1 Stmt. ¶ 6; see also 2013 EEOC

On November 20, 2013, the EEOC issued a Dismissal and

Notice of Rights.

(Defs.’ 56.1 Stmt. ¶ 10.)
11

Plaintiff alleges

that she was not informed of her right to sue until ten months
later when she inquired about the status of the investigation, and
the EEOC e-mailed her its Notice of Dismissal and Notice of Rights
to Sue in March 2014.

(Pl.’s 56.1 Counterstmt. ¶ 10.)

Plaintiff signed a second EEOC charge on October 15,
2014, which was received by the EEOC on October 21, 2014 (the “2014
EEOC Complaint”).
Compl.)

(Defs.’ 56.1 Stmt. ¶ 12; see also 2014 EEOC

Plaintiff alleges that she faxed the 2014 EEOC Complaint

to the EEOC on October 17, 2014, and the EEOC stamped that it
received

the

complaint

Counterstmt. ¶ 12.)

on

October

2014.

(Pl.’s

56.1

On December 15, 2014, the EEOC issued a

Dismissal and Notice of Rights.
Defendants

21,

allege

(Defs.’ 56.1 Stmt. ¶ 15.)

that

the

EEOC

provided

SBUH

with

notices dated June 13, 2013, and November 4, 2014, and did not
provide the full content of Plaintiff’s charges.
Counterstmt. ¶ 17.)

(Defs.’ 56.1

Defendants further allege that Dr. Fenton was

not aware that Plaintiff filed the 2013 EEOC Complaint until the
end of July 2013, and she was not aware that Plaintiff filed the
2014 EEOC Complaint until June 2016.

(Defs.’ 56.1 Counterstmt.

¶ 17.) Plaintiff alleges that on or about July 3, 2013, SBUH staff
was informed about the EEOC Complaint and asked to preserve
evidence.

(Pl.’s 56.1 Counterstmt. ¶ 48.)

12

VII. NYS Physician’s Board Complaint
On May 5, 2013, Plaintiff’s father submitted a complaint
to the New York State Physician’s Board (the “NYSPB Complaint”).
(NYSPB Compl.)

The NYSPB Complaint states that individuals at

SBUH “bullied, harassed, intimidated, discriminated, and defamed
[Plaintiff],”

and

recommendations

of

Dr.
the

Fenton
Internal

“reportedly

as

per

Medicine/Pediatrics

the

Residency

Review Committee for the purpose of discrediting and continued
bullying, intimidation, harassment and abasement of [Plaintiff]
issued a letter of probation and demoted [Plaintiff] from a
supervisory

position

respond

allegations

to

without
made

investigation
against

or

[her].”

opportunity
(NYSPB

to

Compl.)

Plaintiff alleges that on or about June 13, 2013, the Physician’s
Board completed their investigation of her complaint.
Stmt. ¶ 16.)

(Pl.’s 56.1

Defendants allege that the Physician’s Board advised

Plaintiff that it could not assist her because “the alleged actions
reported did not occur within the context of provision of medical
care.”

(Defs.’ 56.1 Counterstmt. ¶ 16.)

Dr. Fenton testified

that she was not informed of any Physician’s Board investigation
until 2016.

(Defs.’ 56.1 Counterstmt. ¶ 16; Fenton’s Dep. Tr.

98:10-99:16.)
DISCUSSION
Summary

judgment

will

be

granted

where

the

movant

demonstrates that there is “no genuine dispute as to any material
13

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).

In

determining whether an award of summary judgment is appropriate,
the

Court

considers

the

pleadings,

deposition

testimony,

interrogatory responses, and admissions on file, together with
other firsthand information that includes but is not limited to
affidavits.

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).

Once

the movant makes such a showing, the non-movant must proffer
specific facts demonstrating “a genuine issue for trial.”

Giglio

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
omitted).

Conclusory allegations or denials will not defeat

summary judgment.

Id.

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

14

6449420, at *2 (E.D.N.Y. Oct. 23, 2015) (quoting McLee v. Chrysler
Corp., 109 F.3d 130, 134 (2d Cir. 1997)).
On

a

motion

for

summary

judgment,

the

Court

must

liberally construe a pro se litigant’s complaint and “read a pro
se litigant’s supporting papers liberally, interpreting them to
raise the strongest arguments that they suggest.”

Adeyi v. U.S.,

No. 06-CV-3842, 2010 WL 520544, at *3 (E.D.N.Y. Feb. 8, 2010)
(internal quotation marks and citations omitted).

Nevertheless,

a litigant’s pro se status does not excuse him from the general
requirements

of

summary

judgment

and

“bald

assertion[s]

unsupported by evidence” will not suffice to overcome summary
judgment.

Id. (internal quotation marks and citations omitted).
The Second Circuit has expressed “the need for caution

in awarding summary judgment to the defendant in an employment
discrimination case where, as here, the merits turn on a dispute
as to the employer’s intent.”

Gorzynski v. JetBlue Airways Corp.,

596 F.3d 93, 101 (2d Cir. 2010) (internal quotation marks and
citation omitted).

Nevertheless, “[i]t is now beyond cavil that

summary judgment may be appropriate even in the fact-intensive
context of discrimination cases.”

Westbrook v. City of N.Y., 591

F. Supp. 2d 207, 222 (E.D.N.Y. 2008) (internal quotation marks and
citations omitted).

15

I.

Title VII Claim
The Complaint does not specify whether Plaintiff’s Title

VII

retaliation

claim

is

asserted

against

both

Defendants.

However, to the extent the Complaint asserts a Title VII claim
against Dr. Fenton, the Court GRANTS summary judgment in favor of
Defendants

since

liability.

See Patterson v. Cty. of Oneida, 375 F.3d 206, 221 (2d

Cir. 2004).

individuals

are

not

subject

to

Title

VII

The Court will address the viability of Plaintiff’s

Title VII claim against SBUH.
A.

Administrative Exhaustion
Prior to filing a Title VII retaliation claim, the

plaintiff must timely file a charge with the EEOC within 300 days
of the retaliatory act.
586, 588 (2d Cir. 2010).

Valtchev v. City of N.Y., 400 F. App’x
“Failure to timely file a charge with

the EEOC renders a Title VII claim time-barred, thereby preventing
a claimant from bringing her claim in federal court.”

Fanelli v.

New York, 51 F. Supp. 3d 219, 227 (E.D.N.Y. 2014). This exhaustion
requirement applies to both underlying factual allegations and
causes of action.

Id.

However, the continuing violation doctrine provides an
exception “for claims that the discriminatory acts were part of a
continuing policy and practice of prohibited discrimination so
long as one act of discrimination in furtherance of the ongoing
policy occurred within the limitations period.”
16

Id. (internal

quotation

marks

and

citations

omitted).

Nevertheless,

this

doctrine “does not apply to discrete acts of discrimination, even
if they are related to acts alleged in timely filed charges.”
Blair v. L.I. Child and Family Dev. Servs., Inc., No. 16-CV-1591,
2017

WL

722112,

at

*9

(E.D.N.Y.

Jan.

31,

2017),

report

and

recommendation adopted, 2017 WL 728231 (E.D.N.Y. Feb. 21, 2017)
(internal quotation marks and citation omitted).

Termination is

a “discrete act[]” that is “barred if not timely filed.” Valtchev,
400 F. App’x at 589.

Further, courts in this Circuit have held

that “disciplinary actions against employees and negative employee
evaluations are discrete acts that do not constitute a continuing
violation.”

Olivier v. Cty. of Rockland, No. 15-CV-8337, 2017 WL

934711, at *5 (S.D.N.Y. Mar. 8, 2017) (collecting cases).
Additionally, the plaintiff must commence her Title VII
action within ninety days of receipt of a right to sue letter from
the EEOC.

Vlad-Berindan v. LifeWorx, Inc., No. 13-CV-1562, 2014

WL 1682059, at *5 (E.D.N.Y. Apr. 28, 2014), aff’d, 599 F. App’x
415 (2d Cir. 2015).

This ninety-day period is a statute of

limitations that is subject to equitable tolling in “‘rare and
exceptional circumstances such as when a party is prevented in
some extraordinary way from exercising his rights.’”

Id. (quoting

Cherry v. City of N.Y., 381 F. App’x 57, 58-59 (2d Cir. 2010).
The plaintiff bears the burden of demonstrating that “exceptional
circumstances”

prevented

her

from
17

filing

the

discrimination

charge, and the district court must analyze whether the plaintiff
“(1) has acted with reasonable diligence during the time period
she seeks to have tolled, and (2) has proved the circumstances are
so extraordinary that the doctrine should apply.”

Young v. Lord

& Taylor, LLC, 937 F. Supp. 2d 346, 351 (E.D.N.Y. Mar. 21, 2013)
(internal quotation marks and citation omitted).
Here, Plaintiff filed two EEOC complaints: (1) an EEOC
intake questionnaire dated May 17, 2013, and received by the EEOC
on May 23, 2013 (the “2013 EEOC Complaint”), and (2) an EEOC intake
questionnaire dated October 17, 2014, and received by the EEOC on
October 21, 2014 (the “2014 EEOC Complaint”).
Compl.; 2014 EEOC Compl.)

(See 2013 EEOC

The 2013 EEOC Complaint cites two

discriminatory actions: (1) on May 2, 2013, Plaintiff was “placed
on probation and demoted of supervisory role and relinquished
educational grant obtained,” and (2) from “2/08-10/136 . . .
superstorm use as the basis of unprofessional behavior.”
EEOC Compl. at P:5-917.)

(2013

On June 27, 2013, Plaintiff submitted a

memorandum to the EEOC that referenced her failure to receive a
promotion to supervisory status from May 2012 to March 2013, her
placement on probation in May 2013, and her termination on June 20,
2013.

(EEOC Memo.)

6

It is unclear whether Plaintiff is referring to a time period from February
2008 through October 2013, or whether she is referencing a time period from
February 8, 2013 through February 10, 2013. As Plaintiff began her residency
at SBUH in 2011, the Court assumes the latter time period applies.

18

The EEOC issued a Notice of Right to Sue with respect to
the 2013 EEOC Complaint on November 20, 2013 (the “Right to Sue
Letter”).

(2013 Right to Sue Ltr.)

Plaintiff alleges that she

did not receive the Right to Sue Letter until March 19, 2014.
(Pl.’s 56.1 Counterstmt. ¶¶ 10-11.)

Even crediting Plaintiff’s

allegation, she was required to commence her Title VII action
within ninety days of her receipt of the Right to Sue Letter-June 17,

2014.

However,

See

Plaintiff

approximately
Plaintiff

nine

has

Vlad-Berindan,
did

not

months

not

2014

commence

later--March

alleged

that

WL

1682059,

this
14,

action

2015.

“exceptional

at

until

Moreover,

circumstances”

inhibited her ability to timely file a Title VII action.
Young, 937 F. Supp. 2d at 351.

*5.

See

Thus, any Title VII claims based

on the factual allegations set forth in the 2013 EEOC Complaint
are time barred.
The 2014 EEOC Complaint alleges that SBUH retaliated
against Plaintiff and references the following incidents: (1) the
ABP’s April 21, 2014, letter indicating that Plaintiff will not
receive

full

credit

for

certain

training;

(2)

the

negative

reference provided by Dr. Fenton in either July or August 2013;7
(3) Plaintiff’s August 2013 termination; and (4) the “biased

7

The October 2014 EEOC Complaint states that Dr. Fenton provided the negative
reference in August 2013; however, Plaintiff’s letter dated October 15, 2014,
states that Dr. Fenton provided the negative reference in July 2013. (2014
EEOC Compl; Oct. 2014 EEOC Ltr.)

19

hearing” conducted in July 2013.
P:5-903.)

(2014 EEOC Compl. at P:5-900,

However, with the exception of the April 21, 2014 ABP

Letter, the incidents set forth in the 2014 EEOC Complaint occurred
more than 300 days before the filing of Plaintiff’s complaint.8
Plaintiff appears to argue that the continuing violation
doctrine applies.
negative

(Pl.’s Opp. Br. at 14.)

reference,

termination,

and

However, Plaintiff’s

hearing

all

constitute

discrete acts that cannot comprise a continuing policy or practice.
As previously noted, termination is a discrete act.
400 F. App’x at 589.

See Valtchev,

The hearing referenced in Plaintiff’s 2014

EEOC Complaint was conducted in connection with Plaintiff’s appeal
of her termination, (see Defs.’ 56.1 Stmt. ¶ 39; Pl.’s 56.1
Counterstmt. ¶ 39), and the Court similarly finds it to be a
discrete act.

The Court also concludes that Dr. Fenton’s negative

reference constitutes a discrete act. See Amar v. Hillcrest Jewish
Ctr., No. 05-CV-3290, 2009 WL 891795, at *6 n.8 (E.D.N.Y. Mar. 31,
2009) (“[a]t least one court has held that a negative employment
reference is a discrete occurrence, actionable at the time that it
was provided to the potential employer, and not saved from the
300-day

filing

requirement

violation doctrine’”).

under

the

so-called

‘continuing

Parenthetically, at the time Dr. Fenton

provided the negative reference, “the discriminatory character of

8

As Plaintiff’s 2014 EEOC Complaint was filed on October 17, 2014, any
incidents that occurred prior to December 21, 2013, are time barred.

20

[that] act[ ] was undoubtedly apparent to Plaintiff.”

Olivier,

2017 WL 934711, at *6 (internal quotation marks and citation
omitted).

Thus, the sole conduct to be considered in connection

with Plaintiff’s Title VII claim is the April 21, 2014 ABP Letter.
B.

Merits
Title VII retaliation claims are analyzed under the

burden-shifting framework detailed in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).
Setelius v. Nat’l Grid Elec. Servs. LLC, No. 11-CV-5528, 2014 WL
4773975, at *19 (E.D.N.Y. Sept. 24, 2014).

First, the plaintiff

must set forth a prima facie retaliation claim by demonstrating:
“(1) she engaged in a protected activity; (2) the employer was
aware of this activity; (3) the employee suffered a materially
adverse employment action; and (4) there was a causal connection
between the alleged adverse action and the protected activity.”
Id.
must

Once the plaintiff makes a prima facie showing, the defendant
proffer

a

“legitimate,

nondiscriminatory

reason

action that the plaintiff alleges was retaliatory.”
quotation marks and citation omitted).

for

the

Id. (internal

If the defendant presents

such a reason, the plaintiff must establish that “but for the
protected activity, she would not have been terminated.”

Id.

(emphasis in original; citing Univ. of Tex. Sw. Med. Ctr. v.
Nassar, --- U.S. ----, 133 S. Ct. 2517, 2533, 186 L. Ed. 2d 503
(2013)).
21

A.

Protected Activity
Plaintiff alleges that she engaged in protected activity

when she submitted complaints to the EEOC and New York State
Physician’s Board in May 2013.
not

dispute

that

(Pl.’s Br. at 11.)

Plaintiff’s

protected activity.

EEOC

complaints

Defendants do
constitutes

a

However, Defendants argue that the New York

State Physician’s Board complaint (“NYSPB Complaint”) does not
constitute protected conduct that SBUH was aware of because it did
not oppose Title VII discrimination.

(Defs.’ Opp. Br. at 10-11.)

The Court agrees.
“[I]mplicit in the requirement that the employer have
been aware of the protected activity is the requirement that it
understood,

or

could

reasonably

have

understood

that

the

plaintiff’s opposition was directed at conduct prohibited by Title
VII.”

Kelly v. Howard I. Shapiro & Assocs. Consulting Eng’rs,

P.C., 716 F.3d 10, 15 (2d Cir. 2013) (internal quotation marks and
citation omitted).
any

individual

conditions,

or

Title VII prohibits discrimination “against

with

respect

privileges

to

of

his

compensation,

employment,

because

terms,
of

individual’s race, color, religion, sex, or national origin.”

the
42

U.S.C. 2000e-2(a)(2).
Here,

the

NYPB

Complaint

contains

the

word

“discrimination,” but does not contain any allegations indicating
that the complained of “discrimination” was based on race, color,
22

religion, sex, or national origin. Accordingly, the NYPB Complaint
does not constitute a protected activity.

See Boata v. Pfizer,

Inc., No. 10-CV-4390, 2013 WL 432585, at *6 (S.D.N.Y. Jan. 31,
2013), aff’d, 554 F. App’x 73 (2d Cir. 2014) (“the law is wellestablished

that,

without

more,

the

mere

use

of

the

word

‘discrimination’ does not transform a single email into protected
activity”);

Boakye-Yiadom

v.

Laria,

No.

09-CV-0622,

2012

WL

5866186, at *12 (E.D.N.Y. Nov. 19, 2012) (“the fact that the July
15 Memo contained the words illegal and discriminatory are not
enough to constitute protected activity”) (internal quotation
marks and citation omitted).

Thus, Plaintiff’s sole protected

activities are her EEOC complaints.
B.

Causation
As set forth above, SBUH received notice of the 2013

EEOC Complaint on or about June 13, 2013, (see 2013 Notice of
Charge), and the record contains a letter from the ABP dated
April 21, 2014, stating that SBUH recorded an adverse evaluation
of Plaintiff’s performance (the “ABP Letter”), (ABP Ltr.).

The

ABP Letter contains a chart indicating that Plaintiff received an
unsatisfactory professional evaluation for the time period from
July 1, 2012 through June 30, 2013, which was attributed “0”
credits.

(ABP Ltr.)

evidence

that

SBUH’s

The record does not contain any direct
adverse

evaluation

of

Plaintiff’s

performance--and the resulting attribution of no credit for the
23

July 2012-June 2013 time period--was retaliation for Plaintiff’s
filing of the 2013 EEOC Complaint.
“In order for a court to accept mere temporal proximity
between an employer’s knowledge of protected activity and an
adverse employment action as sufficient evidence of causality to
establish a prima facie case, the temporal proximity must be very
close.”

Varno v. Jefferson Cty. Dep’t of Planning, No. 11-CV-

0803, 2015 WL 5602965, at *8 (N.D.N.Y. Sept. 23, 2015), aff’d sub.
nom. Varno v. Canfield, 664 F. App’x 63 (2d Cir. 2016) (internal
quotation marks and citation omitted).

While the Second Circuit

has not “define[d] the outer limits beyond which a temporal
relationship

is

too

attenuated

to

establish

a

causal

relationship,” courts in this Circuit have held that a two to three
month gap between the protected activity and adverse employment
action is too removed to support an inference of causation. Maxton
v. Underwriter Labs, Inc., 4 F. Supp. 3d 534, 547 (E.D.N.Y. 2014)
(internal

quotation

marks

and

citation

omitted).

But

see

Gorzynski, 596 F.3d at 110 (“we have previously held that five
months is not too long to find the causal relationship”).

The

Court finds that the approximately ten-month gap between SBUH’s
receipt of the EEOC’s notice of charge and the ABP Letter is too
remote to establish causation based on temporal proximity.

See,

e.g., Maxton, 4 F. Supp. 3d at 547 (holding that the plaintiff did
not state a prima facie retaliation claim where, inter alia, there
24

was an eleven-month gap between the protected activity and adverse
employment action); Lamphear v. Potter, No. 09-CV-1640, 2012 WL
3043108, at *7 (D. Conn. Jul. 25, 2012) (holding that a temporal
gap of nine to ten months was “too attenuated in time to maintain
a claim for [Title VII] retaliation”).
The Court acknowledges that temporal proximity is only
one factor in its causation analysis, and the plaintiff may
establish a causal connection by demonstrating “a ‘pattern of
antagonism’ over the intervening period” between the protected
activity and the alleged adverse action. Curcio v. Roosevelt Union
Free Sch. Dist., No. 10-CV-5612, 2012 WL 3646935, at *14 (E.D.N.Y.
Aug. 22, 2012) (internal quotation marks and citations omitted).
In June 2013, Plaintiff was placed on restricted responsibilities,
given

a

negative

evaluation,

and

provided

notice

of

her

termination, and in August 2013, her appeal of her termination was
denied.

(Pl.’s 56.1 Stmt. ¶¶ 18-19; Defs.’ 56.1 Stmt. ¶¶ 33, 39.)

However, Plaintiff has not alleged that incidents supporting a
“pattern of antagonism” took place between August 2013 and the
April 2014 ABP Letter.

Moreover, the ABP Letter indicates that

SBUH did recommend that Plaintiff receive credit for the period
from July 1, 2013, through August 31, 2013.

(ABP Ltr.)

The Court also acknowledges that while the ABP issued
its letter in April 2014, the record appears to indicate that SBUH
issued

the

adverse

evaluation
25

that

resulted

in

Plaintiff’s

recommended loss of credits in or about June or July 2013.

The

Termination Letter dated June 20, 2013, states, in relevant part,
that

the

Medicine

Pediatrics

Review

Committee

recommended

Plaintiff be given a rating of unsatisfactory and repeat a year of
training, and as a result, Plaintiff “will not receive credit for
the 2012-2013 academic year by the [ABP] and the American Board of
Internal

Medicine.”

(Termination

Ltr.)

Additionally,

Dr.

Kimberly Kranz prepared an evaluation stating that the faculty
evaluated Plaintiff’s competency and determined that she performed
below expected level in a number of areas and did not meet
supervisory qualifications.

(Kranz Eval.)

Dr. Kranz updated this

evaluation on June 17, 2013, and submitted it on July 1, 2013.
(Kranz Eval. at P:5-19.)
However, were the Court to consider the adverse action
to be SBUH’s adverse evaluation, rather than the ABP letter, the
operative date of the adverse action would be July 2013 at the
latest, and Plaintiff’s claim would be administratively barred
based on her failure to file an EEOC charge within 300 days.9

See

Olivier, 2017 WL 934711, at *5 (negative evaluations are discrete
acts that do not qualify as continuing violations).
Accordingly, the Court finds that Plaintiff has failed
to state a prima facie case and her Title VII claim is DISMISSED.

9

300 days after July 1, 2013, is April 1, 2014. As previously noted,
Plaintiff’s 2014 EEOC Complaint was filed in October 2014.

26

II.

Section 1981 Claim
The Court construes the Complaint as asserting Section

1981 claims against SBUH and Dr. Fenton in her individual capacity,
as neither the caption nor the substance of the Complaint indicate
that Plaintiff is suing Dr. Fenton in her official capacity.

The

Court will address each Defendant in turn.
A. SBUH
Defendants argue that Plaintiff’s Section 1981 claim
against SBUH is barred pursuant to the doctrine of sovereign
immunity and the Eleventh Amendment.

(Defs.’ Opp. Br. at 7.)

The

Court agrees.
“The Eleventh Amendment . . . bars a private suit against
a state in federal court unless the state consents to being sued
or Congress unequivocally express[es] its intent to abrogate the
state’s sovereign immunity through legislation enacted pursuant to
a valid grant of constitutional authority.”

Ideyi v. State Univ.

of N.Y. Downstate Med. Ctr., No. 09-CV-1490, 2010 WL 3938411, at
*3 (E.D.N.Y. Sept. 30, 2010) (internal quotation marks and citation
omitted;

second

alteration

in

original).

Eleventh

Amendment

immunity extends to “state agents and state instrumentalities that
are, effectively, arms of the state . . . covering as well
officials at state agencies working on behalf of the state (i.e.,
in their official capacities).”
citation omitted).

Id. (internal quotation marks and

Courts in this Circuit have held that SUNY
27

Stonybrook qualifies as one of the “state agent[s] and state
instrumentalities to which Eleventh Amendment immunity applies.”
Gomez v. Stonybrook University, No. 14-CV-7219, 2016 WL 1039539,
at *13 (E.D.N.Y. Jan. 28, 2016), report and recommendation adopted,
2016 WL 1045536 (E.D.N.Y. Mar. 15, 2016) (internal quotation marks
and citation omitted).

See also Ideyi, 2010 WL 3938411, at *4

(“SUNY (including its subdivisions) and its officials are entitled
to the protection of sovereign immunity”).
Accordingly, as Congress has not abrogated New York’s
immunity from Section 1981 claims, Jennings v. Suny Health Science
Center at Brooklyn (Downstate Medical Center), 201 F. Supp. 3d
332, 335 (E.D.N.Y. 2016), Plaintiff’s Section 1981 claim against
SBUH is DISMISSED.10
B.

Dr. Fenton
As set forth above, Plaintiff has expressly represented

that she is asserting a Section 1981 claim and is not asserting a
Section 1983 claim.

(Pl.’s Opp. Br. at 7.)

Section 1981 provides

that “[a]ll persons within the jurisdiction of the United States
shall have the same right in every State and Territory to make and
enforce contracts . . . and to full and equal benefits of all laws
and proceedings for the security of persons and property as is

10

Parenthetically, even if the Court were to construe Plaintiff’s claim
against SBUH as asserted under Section 1983, it would similarly be barred
based on sovereign immunity. Mamot v. Bd. of Regents, 367 F. App’x 191, 192
(2d Cir. 2010) (“[i]t is well-established that New York has not consented to
§ 1983 suits in federal court”).

28

enjoyed by white citizens, and shall be subject to like punishment,
pains, penalties, taxes, licenses, and exactions of every kind,
and to no other.”

42 U.S.C. § 1981(a).

However, “the express

cause of action for damages created by § 1983 constitutes the
exclusive federal remedy for violation of the rights guaranteed in
§ 1981 by state governmental units.”

Jett v. Dallas Indep. Sch.

Dist., 491 U.S. 701, 733, 109 S. Ct. 2702, 2722, 105 L. Ed. 2d 598
(1989) (emphasis added).

Additionally, this principle has been

“‘extend[ed] to actions against individual defendants in their
individual capacities.’”11

Ideyi, 2010 WL 3938411, at *5 (quoting

Rehman v. State Univ. of N.Y., 596 F. Supp. 2d 643, 654 (E.D.N.Y.
2009)).

See also Romero v. City of N.Y., No. 16-CV-4157, 2016 WL

6155935, at *3 (E.D.N.Y. Oct. 21, 2016) (the unification of Section
1981 and Section 1983 claims “encompass not only governmental
entities but also individuals sued in their individual capacities
who are state actors”) (internal quotation marks and citation
omitted).

In light of Plaintiff’s pro se status, the Court will

liberally construe Plaintiff’s Section 1981 retaliation claim

11

While the Second Circuit has not yet resolved whether Section 1981(c),
which was introduced as part of the Civil Rights Act of 1991, essentially
overrules the Supreme Court’s holding in Jett, in the absence of additional
guidance, courts in this Circuit have continued to follow Jett. Westbrook,
591 F. Supp. 2d at 223, n.8. Accord Li-Wei Kao v. Erie Comm. Coll., No. 11CV-415S, 2015 WL 3823719, at *22, n.7 (W.D.N.Y. Jun. 19, 2015). See also 42
U.S.C. § 1981(c) (“The rights protected by this section are protected against
impairment by nongovernmental discrimination and impairment under color of
state law.”).

29

against Dr. Fenton in her individual capacity as asserted pursuant
to Section 1983.
Section 1983 provides for an action against a “‘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 . . . to the deprivation of any
rights, privileges, or immunities secured by the Constitution and
laws.’”

Patterson, 375 F.3d at 225 (quoting 42 U.S.C. § 1983).

“Section 1983 is not itself a source of substantive rights . . .
[it] merely provides a method for vindicating federal rights
elsewhere conferred . . . such as those conferred by § 1981.”
(internal quotation marks and citations omitted).

Id.

In order to

assert a claim under Section 1983, the plaintiff must allege the
following:

“(1)

the

violation

of

a

right

secured

by

the

constitution and laws of the United States, and (2) the alleged
deprivation was committed by a person acting under color of state
law.”

Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 87-

88 (2d Cir. 2015) (internal quotation marks and citation omitted).
State employment is generally sufficient for the defendant to be
considered a state actor.

Rehman, 596 F. Supp. 2d at 654.

Defendants have construed the Complaint as asserting a
Section 1983 claim based on First Amendment retaliation.
Br. at 16-17.)
more

properly

(Defs.’

However, the Court finds that the Complaint is
construed

as

asserting
30

a

Section

1983

Equal

Protection

claim

discrimination.

for

retaliation

after

a

complaint

of

See Vega, 801 F.3d at 91 (“a claim of retaliation

for a complaint of alleged discrimination is actionable under §
1983” as a violation of the Equal Protection Clause).
The elements of a Section 1983 retaliation claim based
on a violation of the Equal Protection Clause mirror the elements
of a Title VII retaliation claim and are analyzed using the
McDonnell Douglas framework.

Goodwine v. City of N.Y., No. 15-

CV-2868, 2016 WL 3017398, at *5 (S.D.N.Y. May 23, 2016); Deuel v.
Town of Southampton, No. 14-CV-2668, 2015 WL 4394085, at *8
(E.D.N.Y. Jul 16, 2015).

However, to demonstrate individual

liability under Section 1983, “plaintiff must show that each
individual was personal[ly] involve[d] in the retaliation and
acted with discriminatory purpose.”

Edwards v. Khalil, No. 12-

CV-8442, 2016 WL 1312149, at *28 (S.D.N.Y. Mar. 31, 2016) (internal
quotation marks and citation omitted; alterations in original).
Additionally,

Section

1983

claims

are

subject

to

a

three-year statute of limitations and need not be asserted within
the 300-day period applicable to Title VII claims.
F.3d at 225.

Patterson, 375

Accordingly, the Court will consider any conduct

that occurred after March 14, 2012, in determining Plaintiff’s
Section 1983 claim.

31

A.

Protected Activity
As

set

forth

above,

Plaintiff

engaged

in

protected

activity by filing her EEOC Complaints, but did not engage in a
protected activity when she filed her NYPB Complaint.

Thus,

Plaintiff’s two protected activities are the filing of her 2013
EEOC Complaint on May 17, 2013, and her 2014 EEOC Complaint on
October 17, 2014.
B.

(See 2013 EEOC Compl.; 2014 EEOC Compl.)

Knowledge
Defendants

allege

that

the

EEOC

provided

SBUH

with

notices dated June 13, 2013, and November 4, 2014, that indicated
it had received Plaintiff’s charges.
¶ 17.)

(Defs.’ 56.1 Counterstmt.

As “general corporate knowledge” suffices to demonstrate

knowledge

of

Plaintiff’s

protected

activity,

Plaintiff

satisfied the second prong of her prima facie case.

has

Goodwine,

2016 WL 3017398, at *6 (internal quotation marks and citation
omitted).
C.

Adverse Employment Actions
The Court liberally construes Plaintiff’s opposition as

asserting

that

Dr.

Fenton

retaliated

against

her

by:

(1) terminating her, (2) failing to provide a letter of reference
in

connection

with

her

October

2013

residency

application,

(3) submitting the previously noted adverse evaluation to the ABP,
and

(4)

submitting

a

negative

reference

in

October

2014

in

connection with Plaintiff’s application for a medical license in
32

the State of Maryland.
14-16.)

(Pl.’s Br. at 16, 25; Pl.’s Opp. Br. at

The Court finds that these incidents constitute adverse

actions, as they “‘could well dissuade a reasonable worker from
making or supporting a charge of discrimination.’”

Vega, 801 F.3d

at 90 (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S.
53, 57, 126 S. Ct. 2405, 165 L. Ed. 2d 345 (2006)).
As set forth above, Section 1983 liability requires that
Plaintiff demonstrate Dr. Fenton’s personal involvement in the
alleged retaliation.

Defendants do not dispute that Dr. Fenton

was personally involved in Plaintiff’s termination or the adverse
evaluation referenced in the ABP Letter.

Indeed, Dr. Fenton’s

involvement in those actions is clear given her signature on
Plaintiff’s

Termination

Letter

and

the

Termination

Letter’s

reference to the fact that Plaintiff would not receive ABP credit
for the 2012-2013 academic year.

(Termination Ltr.)

Similarly,

with respect to the negative reference allegedly provided by Dr.
Fenton in October 2014, the record contains a form entitled
“Maryland Board of Physicians Verification of Postgraduate Medical
Education” with an explanation letter signed by Dr. Hossain and
Dr. Fenton, as well as a letter dated October 8, 2014, that was
also signed by Drs. Hossain and Fenton.

(Maryland Ver. Form; Oct.

2014 Ltr.)
However,
personal

the

involvement

record
in

does

SBUH’s
33

not

alleged

support
failure

Dr.
to

Fenton’s
provide

Plaintiff with a letter of reference in connection with her 2013
application.

In support, Plaintiff cites an email exchange with

Alexander Djuricich, who appears to be affiliated with another
medical residency program.

(Djuricich Emails.)

Mr. Djuricich

states, in relevant part, “[i]n re-reviewing your file, I noticed
that neither of the Stony Brook program directors had written a
letter of recommendation on your behalf. . . [m]y question is this:
do I have permission to speak with either of the PDs there about
your situation (specifically, Dr. Hossain and Dr. Fenton)?

This

information

your

would

greatly

application, in my opinion.”

help

our

understanding

of

(Djuricich Emails at P:5-1047.)

Plaintiff has not alleged that she requested a letter of
reference from Dr. Fenton in 2013, or that Dr. Fenton was otherwise
involved in a decision not to provide Plaintiff with such a letter.
When

questioned

about

Plaintiff’s

email

exchange

with

Mr.

Djuricich at her deposition, Dr. Fenton was only familiar with a
letter of recommendation prepared in October 2014, and testified
that “[w]hatever [Plaintiff] requested, we submitted it.
[Plaintiff] didn’t request it, we didn’t submit it.”

If

(Fenton’s

Dep. Tr. 139:2-141:21.)
The Court is not persuaded by Plaintiff’s argument that
“Defendants did not provide the Plaintiff a letter of reference
(LOR) to accompany the Plaintiff’s residency application, which
Defendants knew and admitted is common practice.”
34

(Pl.’s Opp. Br.

at 6.)

As set forth above, while it may be common practice for

medical programs to provide letters of reference, Plaintiff has
not demonstrated that Dr. Fenton ignored such a request in 2013.
Parenthetically, the notion that Dr. Fenton failed to provide a
letter

of

reference

is

wholly

inconsistent

with

Plaintiff’s

allegation in the 2014 EEOC Complaint that Dr. Fenton provided a
negative reference in August 2013, and her allegation in an
October 15, 2014, letter to the EEOC that Dr. Fenton provided a
negative reference in July 2013.
Oct. 2014 EEOC Ltr.)

(2014 EEOC Compl. at P:5-900;

Accordingly, the Court will not consider the

alleged failure to provide Plaintiff with a letter of reference in
2013 based on the absence of any evidence regarding Dr. Fenton’s
personal involvement in that conduct.
D.

Causation
As

set

forth

above,

Plaintiff’s

remaining

adverse

actions are her termination, the recommendation to SBUH that she
not receive credits as set forth in the ABP Letter, and the
negative reference provided in October 2014.

The Court will

address each adverse action in turn.
1.

Termination

While

the

close

temporal

proximity

between

SBUH’s

receipt of the EEOC’s notice of charge on June 13, 2013, and the
Termination

Letter

dated

June

20,

2013,

supports

a

causal

connection, Defendants allege that Plaintiff cannot establish
35

causation because Dr. Fenton was not aware of the 2013 EEOC
Complaint until late July 2013.
“[W]here it is undisputed that the decision maker was
unaware of the employee’s protected activity, that fact may be
evidence that there is no causal connection.”

Ehrbar v. Forest

Hills Hosp., 131 F. Supp. 3d 5, 34 (E.D.N.Y. 2015).

But see

Papelino v. Albany Coll. of Pharmacy of Union Univ., 633 F.3d 81,
92 (noting, in the context of a Title IX case, that “[w]hile the
individual agents’ claims of unawareness of the protected activity
are relevant to the jury’s determination of causality, a jury is
entitled to disregard such claims if they are unreliable”).
Defendants do not dispute that the EEOC sent SBUH a
notice of Plaintiff’s charge dated June 13, 2013.
Counterstmt. ¶ 17.)

(Defs.’ 56.1

However, Dr. Fenton testified that she was

not informed of any EEOC complaint until the end of July 2013 when
SBUH’s

counsel,

Ms.

Lemoal-Gray,

(Fenton’s Dep. Tr. 97:6-98:9.)

advised

her

by

telephone.

Plaintiff has not proffered any

evidence that would refute Dr. Fenton’s testimony regarding when
she learned of the 2013 EEOC Complaint.
Additionally, the 2013 Notice of Charge is directed to
the Director of Human Resources at SBUH.

(2013 Notice of Charge.)

It does not contain the substance of Plaintiff’s complaint, and
merely indicates that Plaintiff filed a charge of employment
discrimination under Title VII based on race and sex and raised
36

the issues of “Demotion, Discipline, Other, Terms/Conditions,” and
states that “[n]o action is required by [SBUH] at this time.”
(2013 Notice of Charge.)

Most notably, the 2013 Notice of Charge

does not state the names of any individuals named in Plaintiff’s
2013 EEOC Complaint.
Plaintiff argues that “Defendants also lose[ ] sight
that they entered into discovery an e-mail dated July 3, 2013
requesting

preservation

of

evidence

that

referenced

the

Plaintiff’s May 2013 EEOC charge number, approximately eight (8)
weeks before the Plaintiff’s effective termination date.”
Opp. Br. at 24 (citing Blair Email).)
post-dates the Termination Letter.

(Pl.’s

However, this email also

While Plaintiff notes that the

email precedes her effective termination date, (Pl.’s Opp. Br. at
24), the operative question is whether Dr. Fenton was aware of the
2013 EEOC Complaint prior to issuing the Termination Letter.12
Moreover, the July 3, 2013, email was sent by Dr. Robyn
Blair, Associate Professor of Clinical Pediatrics and Director of
the Pediatric Residency Training Program and Resident Continuity
Clinic,

to

Jean

Segall,

the

Pediatric

Residency

Program

Coordinator; Dr. Fenton was not a recipient or otherwise referenced

12

Parenthetically, Plaintiff submitted her appeal of her termination to Dr.
Schiavone, who convened an ad hoc committee to issue a recommendation.
(Pl.’s 56.1 Counterstmt. ¶ 22; Defs.’ 56.1 Stmt. ¶ 39.) Plaintiff does not
dispute that Dr. Schiavone issued the final decision on the committee’s
recommendation as Chair of the GMEC. (Pl.’s 56.1 Counterstmt. ¶ 39.)
Plaintiff has not alleged that Dr. Fenton was involved in the ad hoc
committee or in the final determination of the GMEC.

37

in the email.

(Blair Email; Segall’s Dep. Tr. at 10:6-9.)

The

email, which is redacted below the signature line, merely states
“FYI” and contains the following attachments: “Request for Docs
Blair.pdf; Notice of Charge.pdf; Notice to Preserve (NB) 7-213.pdf.”

(Blair Email.)

In short, the July 3, 2013, email from

Dr. Blair to Ms. Segall does not establish that Dr. Fenton was
aware of the 2013 EEOC Complaint at that time or, more importantly,
that Dr. Fenton was aware of the 2013 EEOC Complaint prior to the
Termination Letter.
Where
activity,
proffering

the

a

decision-maker

plaintiff

evidence

may

that

is

still

the

unaware

of

demonstrate

“decision-maker

the

protected

causation
[who

by

lacked

knowledge] was acting on orders or encouragement of a superior who
did have the requisite knowledge.”

Ehrbar, 131 F. Supp. 3d at 35

(internal quotation marks and citation omitted; alteration in
original).

As set forth above, Plaintiff has failed to raise

triable issues of fact as to whether any SBUH officials outside of
the

Human

Complaint

Resources
prior

to

Department
the

were

issuance

of

aware
the

of

the

2013

Termination

EEOC

Letter.

Plaintiff has also failed to adduce evidence that Dr. Fenton issued
the Termination Letter at the urging of a superior who was aware
of the 2013 EEOC Complaint.

Accordingly, Plaintiff has failed to

satisfy her prima facie burden regarding causation.

See id.

(“because Plaintiff does not dispute that the decision-makers were
38

wholly unaware of her protected activity and presents no facts
permitting

a

reasonable

jury

to

conclude

that

someone

with

knowledge of her protected activity directed or encouraged these
unknowing decision-makers to terminate her, she has failed to
satisfy even that minimal [prima facie] burden”); Setelius, 2014
WL 4773975, at *23-24 (holding that the plaintiff failed to
establish causation at the prima facie stage where “there is no
evidence that the decision-makers who investigated and ultimately
terminated Plaintiff had actual knowledge of her complaint, acted
with the encouragement of a superior with such knowledge, or at
the behest of a subordinate with such knowledge”).
2.

Recommendation Regarding Academic Credit

As set forth more fully above, Plaintiff alleges that
she suffered retaliation when “[o]n or about April 21st 2014, the
Defendants recommended to [ABP] . . . that the Plaintiff should
not receive credit for the training obtained during the July 2012
to June 2013 period.”

(Pl.’s Br. at 25.)

Again it is unclear

whether Plaintiff alleges that the adverse action is the ABP Letter
notifying her that she would not receive credit or SBUH’s earlier
recommendation to the ABP that she not receive credit for the 20122013 academic year.

To the extent the adverse action is the

issuance of the ABP Letter in April 2014, Plaintiff fails to state
a prima facie claim under Section 1983 for the same reasons

39

addressed in the Court’s discussion of Plaintiff’s Title VII claim
based on the ABP Letter.
As to SBUH’s recommendation that Plaintiff not receive
full credit for her training, that recommendation dates back to
the Termination Letter, which states that Plaintiff will receive
a rating of unsatisfactory and will not receive ABP credit for the
2012-2013 academic year.

(Termination Ltr.)

As the Termination

Letter dated June 20, 2013, predates Dr. Fenton’s July 2013
knowledge of the 2013 EEOC Complaint, Plaintiff fails to state a
prima facie retaliation claim for the same reasons addressed in
the Court’s discussion of her retaliation claim based on the
Termination Letter.
3.

Negative Letter of Reference

“To establish a retaliation claim based on a negative
employment reference, a plaintiff must first prove that a ‘false
statement

negatively

affected

securing employment.’”

[the

plaintiff’s]

chances

of

Alzawahra v. Albany Med. Ctr., 2012 WL

5386565, at *12 (N.D.N.Y. Nov. 1, 2012), aff’d, 546 F. App’x 54
(2d Cir. 2013) (quoting Abreu v. N.Y. City Police Dep’t, 329 F.
App’x 296, 298 (2d Cir. Mar. 31, 2009)) (emphasis and alteration
in original).
entitled

As previously noted, the record contains a form

“Maryland

Board

of

Physicians

Verification

of

Postgraduate Medical Education,” which includes an explanation
letter

signed

by

Drs.

Hossain
40

and

Fenton

(the

“Explanation

Letter”), as well as a letter dated October 8, 2014, addressed to
“Program Director,” and signed by Drs. Hossain and Fenton (the
“Program Director Letter”).

(Maryland Ver. Form; Oct. 2014 Ltr.)

While Plaintiff has alleged that she has been “unable to resume
and/or complete residency training in Internal Medicine/Pediatrics
Program and/or any other specialty” after her termination from
SBUH, (Pl.’s 56.1 Stmt. ¶ 32), she has not proffered evidence as
to whether she was, or was not, awarded a license by the Maryland
Board of Physicians.

In the absence of evidence that Plaintiff

did not receive her license, no reasonable juror could find that
the Explanation Letter negatively affected her chances of securing
licensure in Maryland.
As to the Program Director Letter, putting aside the
question

of

whether

this

letter

contains

false

statements,

Plaintiff has not proffered any evidence as to which programs, if
any, this letter was sent to, or how this letter negatively
affected her job prospects.

Indeed, while Plaintiff has alleged

that she has been unable to resume residency training, she has not
specifically cited this letter, nor has she elaborated on the
circumstances surrounding it in discussing her alleged adverse
actions.
16.)

(See generally Pl.’s Br. at 25, Pl.’s Opp. Br. at 14-

Additionally, the Program Director Letter dated October 8,

2014, predates Plaintiff’s 2014 EEOC Complaint and was prepared
approximately sixteen (16) months after SBUH became aware of
41

Plaintiff’s 2013 EEOC Complaint.

Thus, the temporal gap between

the protected activity and the Program Director Letter is far too
attenuated to demonstrate a retaliation claim based on temporal
proximity.
Accordingly, the Court finds that Plaintiff has failed
to satisfy her prima facie burden and her Section 1983 claim
against Dr. Fenton is DISMISSED.
CONCLUSION
For

the

foregoing

reasons,

Defendants’

motion

for

summary judgment (Docket Entry 109) is GRANTED and Plaintiff’s
motion for summary judgment (Docket Entry 114) is DENIED.

The

Clerk of the Court is directed to enter judgment accordingly and
mark this case CLOSED.

The Clerk of the Court is further directed

to mail a copy of this Memorandum and Order to the pro se Plaintiff.

SO ORDERED.

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

August
10 , 2017
Central Islip, New York

42