McCullough v. John T. Mather Hospital of Port Jefferson, New York Inc.

Filing 48

ORDER granting 36 Motion for Summary Judgment: Defendant's motion for summary judgment is granted. The Clerk of Court is directed to enter judgment accordingly and to close this case. See attached Memorandum & Order. Ordered by Judge Denis R. Hurley on 4/19/2019. (Gapinski, Michele)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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SPARKLE MCCULLOUGH,
MEMORANDUM & ORDER
16-CV-4968 (DRH)(SIL)

Plaintiff,
-againstJOHN T. MATHER HOSPITAL OF PORT
JEFFERSON, NEW YORK, INC.,
Defendant.
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APPEARANCES:
For Plaintiff
Shulman Kessler LLP
534 Broadhollow Road, Suite 275
Melville, New York 11747
By:
Troy L. Kessler, Esq.
Garrett Kaske, Esq.
For Defendant:
Putney, Twombly, Hall & Hirson LLP
521 Fifth Avenue
New York, New York 10175
By:
Mary Ellen Donnelly, Esq.
A. Sonu Ray, Esq.
HURLEY, Senior District Judge:

Plaintiff Sparkle McCullough (“Plaintiff” or “McCullough”) commenced this action
against defendant John T. Mather Hospital of Port Jefferson, New York, Inc. (“Defendant” or the
“Hospital”) asserting causes of action under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
2000e, et seq. (“Title VII”) and the New York State Human Right Law, N.Y. Exec. Law § 296
(“NYSHRL”) for race discrimination in the form of a hostile work environment and for
retaliation. Presently before the Court is Defendant’s motion for summary judgment. For the
reasons set forth below, the motion is granted.

Page 1 of 24

BACKGROUND
The following facts are taken from the parties’ 56.1 Statements and are undisputed unless
otherwise noted.
I.

The Parties and Other Individuals Involved
The Hospital is a voluntary, not-for-profit, acute health care facility located in Port

Jefferson, New York; it is an equal opportunity employer with strict policies against
discrimination and retaliation. (Pl.’s 56.1 ¶¶ 1-2.)
Raymond Gulino (“Gulino”) is the Administrative Director of Laboratory Services at the
Hospital. His responsibilities include, among other things, oversight of the clinical laboratory in
conjunction with the Medical Director, administrative functions, oversight of laboratory
supervisors, and working with staff and supervisors in the hiring and testing processes. Christy
Evangelista (“Evangelista”) was the Phlebotomy Supervisor during the time of Plaintiff’s
employment with the Hospital. As such she was responsible for oversight of the staff and
phlebotomists, scheduling and inventory. Wayne Shattes (“Shattes”) is the Vice President of
Administration at the Hospital and is responsible for oversight of a variety of professional and
support departments, including but not limited to, the laboratory departments, at the Hospital.
Christine Ricci (“Ricci”) is a staff member of the Phlebotomy Department and was a coworker
of Plaintiff. Diane Marotta (“Marotta”) is the Vice President of Human Resources and is
responsible for the administration of all human resources related issues, including employee
related policies, and the administration of personnel hiring and employment status changes.
(Pl.’s 56.1 ¶¶ 6-14.)

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II.

Plaintiff’s Employment at the Hospital
Plaintiff submitted an application for the position of a per diem laboratory assistant in the

Hospital’s Phlebotomy Department on September 30, 2014. After having been interviewed by
Gulino and Evangelista, Plaintiff received an offer of employment on November 7, 2014 for the
position. While Plaintiff admits that per diem employees are not guaranteed a specific number of
hours in a week, she claims she was hired to work four or five days a week. Plaintiff
commenced employment with the Hospital on November 7, 2014 as a per diem Laboratory
Assistant in the Phlebotomy Department, supervised by Evangelista and Gulino. (Pl.’s 56.1 ¶¶
15-18.)
Pursuant to Hospital policy, which is uniformly enforced, newly hired employees are
subject to a three-month probationary period, after which they receive a performance evaluation.
Depending on the employee’s performance and three-month evaluation, an employee’s
probationary period may be extended for an additional three months. As a new employee,
Plaintiff was subject to a three-month probationary period and attended the Hospital’s orientation
program where she received copies of the Hospital’s Standards of Performance Booklet, Code of
Conduct and Compliance Manual. (Pl.’s 56.1 ¶¶ 19-23.)
III.

Plaintiff Complains about Ricci’s Comments.
On December 18, 2014, Plaintiff complained to Evangelista about racist comments made

to her by Ricci. There were three comments about which Plaintiff complained: (1) in November
2014, Ricci asked Plaintiff why her hair was so straight; (2) in December 2014, Ricci asked
Plaintiff how she was able to get her hair so straight since Black women typically have kinky
hair; and (3) in December 2014, when, in response to an inquiry by Ricci Plaintiff said she lived
in Brooklyn before moving to Long Island, Ricci asked why “you people” are moving out to

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Long Island to raise their children. Plaintiff advised Evangelista that at least one of the comments
was made in the presence of another employee in the Phlebotomy Department, Dana Saparito.
Evangelists brought the complaint to the attention of Gulino who initiated an investigation into
Plaintiff’s complaint that day. Gulino’s investigation of Plaintiff’s complaint against Ricci,
included meeting with Plaintiff, Ricci, and Ms. Saparito individually. (Pl.’s 56.1 ¶¶ 24-30.)
During her December 18, 2014 meeting with Gulino, Plaintiff advised him that she did
not want to get Ricci in trouble, but she did want the Hospital to educate Ricci regarding her
inappropriate comments. Gulino assured Plaintiff that the Hospital would immediately
investigate the matter and take any action deemed appropriate as a result of the investigation.
Gulino also interviewed Ms. Saparito on December 18, 2014, who confirmed that she overheard
the conversation between Ricci and Plaintiff during which Ricci made the comment about “you
people” moving to Long Island. That same day, Gulino met with Ricci who admitted she made
the comments reported by Plaintiff but claimed they were misinterpreted. According to Ricci,
when she made the comments about moving to Long Island, she was simply raising a question
about why so many people from Brooklyn and Queens were moving to Long Island. When
Gulino asked Ricci about the comment regarding Plaintiff’s hair, Ricci again admitted making it
but claimed she meant it as a compliment; Ricci said she was also a hairdresser and was curious
to learn how Plaintiff styled her hair because it was so straight. Gulino advised Ricci that despite
her intentions, Plaintiff perceived the comments to be offensive and that Ricci needed to be more
cognizant of how she spoke to other employees in the workplace. Although Ricci denied any
racial motive for her comments, Gulino determined that the comments made Plaintiff
uncomfortable and therefore were inappropriate for the workplace. (Pl.’s 56.1 ¶¶ 31-36.)

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On December 19, 2014, Gulino and Evangelista met with Ricci and, due to her comments
to Plaintiff, provided her with a written warning for violations of Hospital policy and the
Hospital’s standards of performance. Ricci was also advised that any similar conduct or
comments in the future would result in further disciplinary action, up to and including
termination of her employment. Gulino and Evangelista requested that Ricci apologize to
Plaintiff. Although Ricci did apologize, Plaintiff contends it was a feigned apology and that Ricci
complained to Plaintiff that her complaint may have cost her a full-time position with the
Hospital. (Pl.’s 56.1 ¶¶ 37-40.)
Gulino met with Plaintiff1 and informed her of his conversation with Ricci and explained
that the Hospital does not tolerate discrimination of any kind and is proud of the diversity of its
employees. He informed Plaintiff that if she should ever feel uncomfortable in the future she
should bring it to his attention immediately. (Pl.’s 56.1 ¶¶ 41-43.)
IV.

Plaintiff’s Job Performance
The Hospital Laboratory’s Mislabeled and Unlabeled Specimen Policy (the “Labeling

Policy”) requires that all blood cultures be labeled at the patient’s bedside so that the Hospital
may properly identify a patient’s blood specimen. Employees who engage in policy infractions
are subject to the Hospital’s progressive discipline, up to and including termination of
employment. On the first occurrence of a mislabeled or unlabeled specimen, the individual who
made the error would be assessed 12 points for the occurrence and receive a written warning.
Any additional mislabeled or unlabeled specimen occurrences would add additional points to an
individual’s point accrual. If an individual’s points exceed 25 points, the individual’s

1

There is a dispute as to whether this meeting occurred before or after Ricci apologized, but this dispute is
immaterial.

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employment is terminated. The exact language of the policy is that “[s]hould an individual at
any point exceed 25 points they will be discharged.” (Pl.’s 56.1 ¶ 48; Ex. D to Gulino Aff.)
On February 5, 2015, Plaintiff failed to label blood cultures taken from the Hospital’s
emergency room at a patient’s bedside, as required by Hospital policy. She received a written
warning for her failure to label the blood cultures and was assessed 12 points. Evangelista met
with Plaintiff and counseled her regarding her failure to follow Hospital policy and warned
Plaintiff that repeat offenses would lead to additional disciplinary action, up to and including
suspension and/or termination of employment. Although admitting she failed to label the blood
cultures as required by Hospital policy, Plaintiff claims that another employee mistakenly took
the yet-to-be labeled culture. She also claims that she was later told the points assessment was
being changed so she could apply for a transfer to a different position in the hospital as one
cannot transfer unless you have no points.2 (Pl.’s 56.1 ¶¶ 47-52.)
On or about February 25, 2015, Plaintiff advised Gulino that she was concerned that
Ricci was exhibiting a lack of concern for the comfort and well-being of her patients. She stated
that she heard complaints about Ricci from patients and from another phlebotomist, Jen Ehrman.
Gulino directed Evangelista to perform patient audits on Ricci’s patients and to interview Ms.
Ehrman. Evangelista interviewed five patients, who each communicated that he or she was
satisfied with Ricci’s care and stated Ricci was pleasant, helpful and did a good job drawing their
blood. She also interviewed Ms. Ehrman, who stated that she did not make comments to
Plaintiff about Ricci. (Pl.’s 56.1 ¶¶ 53-58.)

2

In her 56.1 Statement Plaintiff asserts that the points were taken away as a result of the other employee having
mistakenly taken the cultures. However, the deposition testimony that she cites does not support that assertion.
Rather, according to her deposition, the points were going to be taken away so she could attempt to transfer to
another department in the Hospital. (Ex. A to Kaske Dep. (McCullough Dep.) at 118-119.) It is also noteworthy that
in a note written by Plaintiff to Marotta, Plaintiff recounts that Gulino said he could not take away the points. (Ex. H
to Gulino Aff.)

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On March 4, 2015, Plaintiff received her Performance Evaluation for her probationary
period. She did not pass her probationary period. According to that evaluation, Plaintiff’s job
performance in the following four categories needed improvement: (1) “[m]aintains an
acceptable attendance record;” (2) “[t]reats coworkers, patients and physicians with respect,
courtesy and professionalism;” (3) “labels the test tube immediately after procedure is completed
with patient name, room, date, time and initials;” and (4) “[u]ses time between tests to
departmental advantage by filling in with office work, assisting technical staff, performing
general household duties, putting away supplies, or performing other duties as necessary.” She
was rated as “meets standard” in the other 45 categories on the evaluation. The Performance
Evaluation also provided a development plan for “all competencies/accountabilities where
standards [were] not met.” The development plan noted Plaintiff’s February 5 incident regarding
unlabeled specimens causing her to receive twelve points and stated that Plaintiff needed to work
on her attendance and commitment to the Hospital’s Phlebotomy Department and her ability to
communicate with her coworkers and treat them with respect, courtesy, and professionalism, as
well as that she needed help in performing general household duties, putting away supplies and
restocking the lab. According to the evaluation, the Hospital extended Plaintiff’s probationary
period for an additional three months “due to the unlabeled specimen and the accumulation of 12
points.”
Gulino and Evangelista advised Plaintiff she should continue with in-service training and
review the Hospital’s policies and procedures to assist her in improving in the performance of
her job responsibilities. (Pl.’s 56.1 ¶¶ 59-68.) Plaintiff disputes the accuracy of the “needs
improvement” rating in her evaluation. She contends that she “treated her co-workers with
respect, courtesy, and professionalism, and had a good working relationship with most of her co-

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corkers.” Plaintiff also claims she was subject to over-the top scrutiny and insulting behavior.
For example “Evangelista was demeaning to her,” “told Plaintiff that if she did not like the
schedule she should resign,” and “repeatedly spoke down to her and embarrassed her in front of
other employees.” (Pl.’s 56.1 ¶¶ 45-46.)
On March 12, 2015, the Hospital received a written complaint from Wendy Taranto, a
technician in the Laboratory Accessioning Department, regarding Plaintiff’s conduct. According
to Ms. Taranto, on March 2, 2015, while working with her in the Phlebotomy Department,
Plaintiff began questioning her about another phlebotomist and that phlebotomist’s job
performance; when Ms. Taranto informed Plaintiff that she did not think it was appropriate to
discuss job performance of other coworkers, Plaintiff became agitated and acted rudely toward
her. Ms. Taranto reported to the Hospital that Plaintiff’s conduct made her feel extremely
uncomfortable. Plaintiff disputes having any such conversation with Ms. Taranto. (Pl.’s 56.1 ¶¶
70-74.)
Also on March 12, 2015, Plaintiff, accompanied by her husband, met with Gulino to
discuss her schedule. She complained that Evangelista had not scheduled her to work for three
weeks. Gulino reminded Plaintiff that she had advised him that she had received a summons for
jury duty for two weeks and that she was taking a vacation for an additional week. Schedules in
the Phlebotomy Department are posted four weeks in advance and Evangelista created those
schedules anywhere from eight to twelve weeks in advance. Gulino advised Plaintiff that as a per
diem employee, she did not have a set schedule. Evangelista indicated to Gulino that she was
waiting for communication from Plaintiff regarding her availability to work. Plaintiff states that
she advised Evangelista “that she was not required to serve on jury duty for the remaining two
weeks” and Evangelista told her not to call her about the schedule, but rather wait for

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Evangelista’s call. Gulino spoke to Evangelista to see if there were any available shifts during
the week Plaintiff had indicated that she would be on vacation. On March 13, 2015, Gulino met
with Evangelista to advise her of his meeting with Plaintiff and to attempt to resolve any
remaining scheduling issues. (Pl.’s 56.1 ¶¶ 75-86.)
On May 15, 2015, Evangelista received an email complaint from a medical assistant, Ria
Ramdeen, regarding Plaintiff’s poor performance. Ms. Ramdeen informed her that on May 14,
2015, she requested that the lab draw blood from an 80-year-old patient with arteriovenous
fistulas in both veins, which meant that the patient had very fragile veins. According to Ms.
Ramdeen, both she and another coworker, Mary Greco, were concerned over the manner in
which Plaintiff attempted to draw blood from the patient, as well as Plaintiff’s apparent lack of
concern for the patient’s well-being. While acknowledging the complaint was received, Plaintiff
denies that she assisted the patient in an improper manner. (Pl.’s 56.1 ¶¶ 87-89.)
On May 29, 2015, Plaintiff received another written warning for violation of Hospital
policy and poor work performance. Specifically, Plaintiff performed a phlebotomy and left blood
specimens on a patient’s tray unlabeled, in violation of Hospital policy. The patient discovered
the blood specimens and immediately contacted his nurse, who in turn called the laboratory and
advised Evangelista of the incident. Evangelista verbally counseled Plaintiff and reminded her
that Hospital policy was to label all specimens bedside with the patient present; she also advised
Plaintiff that having been previously counseled regarding the same conduct, any further offenses
would lead to additional disciplinary action up to and including termination. Plaintiff was
assessed twelve points for this violation. Thus, within a three-and-a-half-month period, Plaintiff
was assessed a total of 24 points, one point less than that which required termination of
employment. (Pl.’s 56.1 ¶¶ 90-97.)

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V.

Plaintiff Complains of Retaliation
On April 3, 2015, Plaintiff met with Marotta, the Vice President of Human Resources.

She advised Marotta that she felt Evangelista was retaliating against her based upon her prior
complaint of discrimination by (1) assigning her fewer hours than she had previously been
assigned; (2) not permitting her to train a new employee; and (3) counseling her and giving her
warnings that she did not believe were warranted. Marotta met with Plaintiff regarding her
complaints on April 2, April 8, April 24 and May 6, 2015. During these meeting Plaintiff
reiterated her complaints about Evangelista and advised Marotta she was not happy working in
phlebotomy and wanted to transfer out of the laboratory. Marotta met with both Gulino and
Evangelista to discuss Plaintiff’s allegations of retaliation. Evangelista assured Marotta that she
was not retaliating against Plaintiff in any way. She advised that a full-time employee without
disciplinary action had been selected to train new employees and that since Plaintiff was a per
diem employee, she was scheduled to work at times when the Phlebotomy Department needed
assistance; as Plaintiff was unavailable evenings and weekends her scheduling limitations did not
always coincide with the operational needs of the department. Both Gulino and Evangelista
explained to Marotta that Plaintiff had serious difficulty accepting constructive criticism from
her supervisors and did not interact well with her coworkers. At the conclusion of her
investigation, Marotta determined that Evangelista had not retaliated against Plaintiff. (Pl.’s 56.1
¶¶ 98-110.)
On or about June 5, 2015, Marotta met with Plaintiff and Shattes, Vice President of
Administration at the Hospital, regarding the results of the Hospital’s investigation into
Plaintiff’s complaint of retaliation. Plaintiff advised Marotta and Shattes that she no longer
wanted to work in the Phlebotomy Department and expressed an interest in a clerical position

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within the Hospital. The Hospital attempted to accommodate Plaintiff’s request for a transfer; it
arranged for Plaintiff to take the tests required to transfer to a clerical position within the
Hospital. Plaintiff took two typing tests and a math test, tests which are required of all
individuals who apply for clerical employment with the Hospital. She did not pass any of the
examinations required for the clerical positions and thus she was not eligible to apply for any
such positions. As a result of plaintiff’s failure to qualify for a clerical position with the Hospital,
Marotta advised Plaintiff that she would assist her in obtaining alternate employment. (Pl.’s 56.1
¶¶ 111-119.)
VI.

Plaintiff’s Employment at Harborview
Marotta did in fact assist Plaintiff in obtaining alternate employment, viz. a clerical

position at Harborview Medical Services (“Harborview”), a physician practice group. Plaintiff
was offered and accepted a position working directly with the Administrator in charge of
Harborview, Terry Bertovich (“Bertovich”). Plaintiff’s employment with Harborview was
terminated; the reason given was the use of inappropriate language in front of patients. While she
admits she was told she was terminated for saying “fuck” in the workplace, she disputes that she
was terminated for this reason as Bertovich and other employees of Harborview use the same
language in the workplace. (Pl.’s 56.1 ¶¶ 120-123.)
VII.

Matters Omitted from Plaintiff’s Resume
Prior to her employment at the Hospital, Plaintiff worked for Rheumatology Associates

from approximately the summer of 2013 to December 3, 2013. Although she had been employed
with Rheumatology Associates for approximately three months, said employment was omitted
from the resume Plaintiff submitted in support of her application for a position with the Hospital
and she did not disclose the termination of her employment from that position. The reason given

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for her termination from Rheumatology Associates was that she physically blocked a doctor
from passing through a door in the office; Plaintiff asserts she was terminated because of her
race. (Pl.’s 56.1 ¶¶ 124-128.)
DISCUSSION
I.

Summary Judgment Standard
Summary judgment, pursuant to Rule 56, is appropriate only where the movant “shows

that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). The relevant governing law in each case determines which
facts are material; "[o]nly disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). When making this determination, a court must view all
facts “in the light most favorable” to the non-movant, Tolan v. Cotton, 134 S. Ct. 1861, 1866
(2014), and “resolve all ambiguities and draw all permissible factual inferences in favor of the
[non-movant],” Johnson v. Killian, 680 F.3d 234, 236 (2d Cir. 2012) (quoting Terry v. Ashcroft,
336 F.3d 128, 137 (2d Cir. 2003)). Thus, “[s]ummary judgment is appropriate [only] where the
record taken as a whole could not lead a rational trier of fact to find for the [non-movant].” Id.
(quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)) (internal
quotation marks omitted).
To defeat a summary judgment motion properly supported by affidavits, depositions, or
other documentation, the non-movant must offer similar materials setting forth specific facts
demonstrating that there is a genuine dispute of material fact to be tried. Wright v. Goord, 554
F.3d 255, 266 (2d Cir. 2009). The non-movant must present more than a "scintilla of evidence,"
Fabrikant v. French, 691 F.3d 193, 205 (2d Cir. 2012) (quoting Anderson, 477 U.S. at 252), or

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"some metaphysical doubt as to the material facts," Brown v. Eli Lilly & Co., 654 F.3d 347, 358
(2d Cir. 2011) (quoting Matsushita, 475 U.S. at 586-87), and “may not rely on conclusory
allegations or unsubstantiated speculation,” Id. (quoting FDIC v. Great Am. Ins. Co., 607 F.3d
288, 292 (2d Cir. 2010).
The district court considering a summary judgment motion must also be "mindful . . . of
the underlying standards and burdens of proof," Pickett v. RTS Helicopter, 128 F.3d 925, 928
(5th Cir. 1997) (citing Anderson, 477 U.S. at 252), because the "evidentiary burdens that the
respective parties will bear at trial guide district courts in their determination[s] of summary
judgment motions," Brady v. Town of Colchester, 863 F.2d 205, 211 (2d Cir. 1988). "[W]here
the [non-movant] will bear the burden of proof on an issue at trial, the moving party may satisfy
its burden by pointing to an absence of evidence to support an essential element of the [nonmovant’s] case.” Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 486 (2d Cir. 2014)
(quoting Brady, 863 F.2d at 210-11) (internal quotation marks omitted). Where a movant
without the underlying burden of proof offers evidence that the non-movant has failed to
establish his claim, the burden shifts to the non-movant to offer "persuasive evidence that his
claim is not 'implausible.' " Brady, 863 F.2d at 211 (citing Matsushita, 475 U.S. at 587). “[A]
complete failure of proof concerning an essential element of the [non-movant’s] case necessarily
renders all other facts immaterial.” Crawford, 758 F.3d at 486 (quoting Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986).
II.

Hostile Work Environment Claim
A.

Applicable Law

Title VII and NYSHRL prohibits an employer from discriminating against an employee
on the basis of race, color, religion, sex, or national origin. See 42 U.S.C. § 2000e-2(a)(1); N.Y.

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Exec. Law ¶ 296. These prohibitions encompass “requiring people to work in a discriminatory
hostile or abusive environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).
Where a claim of hostile work environment is asserted, the plaintiff must demonstrate, he
or she is a member of a protected class and “that [his or] her workplace was permeated with
discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of
[his or] her work environment . . . .” Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir.
1997) (quotation marks omitted). This standard is a “demanding one,” Scott v. Mem’l SloanKettering Cancer Ctr., 190 F. Supp.2d 590, 599 (S.D.N.Y. 2002), requiring that a plaintiff
establish both objective and subjective components, to wit, “not only that [the plaintiff]
subjectively perceived the environment to be abusive, but also that the environment was
objectively hostile and abusive.” Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 102 (2d Cir.
2010); see also Demoret v. Zegarelli, 451 F.3d 140, 149 (2d Cir. 2006) (“Plaintiff must show not
only that [he] subjectively perceived the environment to be abusive, but also that the
environment was objectively hostile and abusive.”). Furthermore, “there must be a specific basis
for imputing the conduct creating the hostile work environment to the employer.” Doner–
Hendrick v. N.Y. Inst. of Tech., 2011 WL 2652460, at *5 (S.D.N.Y. July 6, 2011) (internal
quotation marks omitted).
“Isolated incidents typically do not rise to the level of a hostile work environment unless
they are ‘of sufficient severity’ to ‘alter the terms and conditions of employment as to create such
an environment.’ ” Demoret, 451 F.3d at 149 (quoting Patterson v. Cnty. of Oneida, 375 F.3d
206, 227 (2d Cir.2004)). Rather, “[c]ourts look at all circumstances to ascertain whether an
environment is sufficiently hostile or abusive to support a claim.” Leibovitz v. N.Y. City Transit
Auth., 252 F.3d 179, 188 (2d Cir. 2001). “Among the factors to be considered in determining

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whether conduct is sufficiently hostile under the totality of the circumstances are: frequency;
severity; whether the conduct is physically threatening or humiliating; and whether it interferes
with an employee’s performance.” Scott, 190 F. Supp.2d at 599 (citing Harris, 510 U.S. at 23).
“[T]he Second Circuit has made it clear that insensitive comments are not per se unlawful.” Id.
(citing Williams v. County of Westchester, 171 F.3d 98, 101 (2d Cir. 1999)); see Preuss v.
Kolmar Lab., Inc., 970 F. Supp. 2d 171, 184 (S.D.N.Y. 2013) (The “mere utterance of an epithet
which engenders offensive feelings in an employee does not sufficiently affect the conditions of
employment to establish a hostile work environment claim.”) (internal quotation marks omitted).
It is necessary for the plaintiff to establish a link between the actions by defendants and
plaintiff's membership in a protected class. Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002);
Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001).
B.

The Parties’ Positions

Defendant argues that it is entitle to summary judgment on Plaintiff’s hostile work
environment claim as it is premised on the comments by Ricci, which are insufficient to support
such a claim and because there is no basis to impute Ricci’s comments to the Hospital. Plaintiff’s
memorandum does not address her hostile work environment claim.
C.

Defendant’s Motion is Granted as to the Hostile Work Environment Claim

By failing to address her work hostile work environment claim, Plaintiff has abandoned
it.3 On that basis alone, the Hospital is entitled to summary judgment in its favor on that claim.
See, e.g., Felix v. N.Y.S. Dept. of Corrections, 2018 WL 352859 (S.D.N.Y. July 23, 2018).

3
The Court notes that Defendant makes three arguments in support of its motion for summary judgment (1)
Plaintiff has not a stated a claim for discrimination; (2) Plaintiff was not subject to a hostile work environment; and
(3) Plaintiff has not established a retaliation claim. (See Def.’s Mem. (DE 38) at 9, 19, 22.) The complaint however,
only asserts claims for hostile work environment (under both Title VII and the NYHRRL) and retaliation under the
two foregoing statutes. Accordingly, the Court need not address any claim for “discrimination” other than hostile
work environment and retaliation.

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Moreover, the evidence proffered in this case is insufficient to support a hostile work
environment claim. Ricci’s comments, while wholly inappropriate, are not sufficiently severe to
permit a rational fact-finder to conclude that the conditions of Plaintiff’s working environment
were altered by a workplace severely “permeated with discriminatory intimidation, ridicule and
insult.” LaBella v. New York City Admin. for Children’s Servs., 2005 WL 2077192, at *19
(E.D.N.Y. Mar. 28, 2005). Nor is there any basis to impute Ricci’s comments to the Hospital.
Indeed, upon learning of Ricci’s comments, the Hospital undertook an immediate investigation
and undertook steps to remedy the conduct of Ms. Ricci, including disciplining her.
Similarly, the criticism of Plaintiff’s work performance does not support a hostile work
environment claim. There is nothing to suggest that they are tied to Plaintiff’s protected status.4
See Gregory v. Daly, 243 F.3d 687, 694 (2d Cir. 2001) (there must be “factual circumstances that
permit the inference that plaintiff was subjected to a hostile work environment because of his
[protected status]”); Murphy v. BeavEx Inc., 544 F. Supp. 2d 139 151 (D. Conn. 2008) (finding
comments directed at plaintiff-employee’s job performance did not display “discriminatory
animus” and did not support hostile work environment claim).
Defendant’s motion for summary judgment on the hostile work environment claim is
granted.
III.

The Retaliation Claim
A.

Applicable Law

Title VII and the NYSHRL prohibit retaliation against employees who engage in
protected activity. See, e.g., Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002);

4

The Court notes that the submission on this motion does not contain any allegation as the nature of Plaintiff’s
protected status. The complaint does identify her as “black,” but the complaint is not evidence. Based on the nature
of the comments by Ricci about which Plaintiff complained to the Hospital, the Court has deduced that the category
at issue is race.

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Vasquez v. Empress Ambulance Serv., Inc., – F.3d –, 2016 WL 4501673 (2d Cir. Aug. 29, 2016).
Such retaliation claims are analyzed using the McDonnell Douglas “burden-shifting” formula.
See, e.g., Kessler v. Westchester Cnty. Dep't of Social Servs., 461 F.3d 199, 205 (2d Cir. 2006).
To make out a prima facie case of retaliation, a plaintiff must show that “she engaged in
protected participation or opposition under Title VII, that the employer was aware of this
activity, that the employer took adverse action against the plaintiff, and that a causal connection
exists between the protected activity and the adverse action, i.e., that a retaliatory motive played
a part in the adverse employment action.” Sosa v. Rockland County Community College, 2017
WL 3105872 (S.D.N.Y. July 20, 2017) (internal quotation marks omitted); see Miller v. Praxair,
408 Fed. App’x 408, 409-10 (2d Cir. 2010).5
The first element of a prima facie case is that the plaintiff engaged in protected activity
and that the employer was aware of this activity. Protected activity for purposes of Title VII
include “informal protests of discriminatory employment practices, including making complaints
to management.” DeVore v. Neighborhood Housing Servs. of Jamaica, Inc., 2017 WL 1034787,
*9 (E.D.N.Y. Mar. 16, 2017) (citing Littlejohn v. City of New York, 795 F.3d 297, 317-18 (2d
Cir. 2015)). Generalized complaints, however, are insufficient; complaints must be sufficiently
specific to make clear that the employee is complaining about conduct prohibited by the
applicable discrimination statute. See Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d
98, 108 (2d Cir. 2011). “To the extent that an employee complains about perceived ‘unfair’
treatment relating to job responsibility, hiring practices, or corporate policy, but fails to link the
treatment to unlawful discrimination or to his protected status, he fails to establish that he was
engaged in protected activity.” Penberg v. HealthBridge Mgmt., 823 F. Supp. 2d 166, 191

5

The same analysis applies to retaliation claims under the NYSHRL.

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(E.D.N.Y. 2011) (citing, inter alia, Velasquez v. Goldwater Memorial Hosp., 88 F. Supp. 2d 257,
264 (S.D.N.Y. 2000) (general complaints about corporate policy without linking it to plaintiff's
status are insufficient to establish “protected activity” under Title VII).
The second element is that the employer took adverse action against the plaintiff. In the
context of “Title VII’s antiretaliation provision, unlike the substantive provision,” retaliation “is
not limited to discriminatory actions that affect the terms and conditions of employment.” DavisGarett v. Urban Outfitters, Inc., -- F.3d --, 2019 WL 1510428, *10 (2d Cir. Apr. 8, 2019)
(internal quotation marks omitted). “Instead, the proper question for a retaliation claim is
whether the alleged adverse action to which the plaintiff was subjected could well have
dissuaded a reasonable employee in his position from complaining of unlawful discrimination.”
Id. (internal quotation marks and brackets omitted).
The last and final element is that a causal connection exists between the protected activity
and the adverse action, i.e. that a retaliatory motive played a part in the adverse employment
action. Kessler v. Westchester Cnty. Dep’t of Social Servs., 461 F.3d 199-205-06 (2d Cir. 2006)
(citation omitted). “Causation can be proven (1) directly ‘through evidence of retaliatory animus
directed against the plaintiff by the defendant;’ or (2) indirectly either (a) ‘by showing that the
protected activity was followed closely by discriminatory treatment,’ or (b) through other
circumstantial evidence such as disparate treatment of fellow employees who engaged in similar
conduct.’” D’Andrea v. Nielsen, -- F. App’x --, 2019 WL 1503923, * 2 (2d Cir. April 5, 2019)
(quoting Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000). The Second Circuit
“has not drawn a bright line to define the outer limits beyond which a temporal relationship is
too attenuated to establish a causal relationship,” Gorman–Bakos v. Cornell Co-op Extension of
Schenectady Cnty., 252 F.3d 545, 554 (2d Cir. 2001). It has, however, upheld an inference of a

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causal connection based on lapses of up to eight months between the protected activity and the
alleged retaliatory actions. Grant v. Bethlehem Steel Corp., 622 F.2d 43, 45–46 (2d Cir. 1980)
(eight month gap between EEOC complaint and retaliatory act suggested causal relationship);
see Espinal v. Goord, 558 F.3d 119, 129 (2d Cir. 2009) (inferring causal connection with sixmonth lapse); Gorman–Bakos, 252 F.3d at 554 (same with five month lapse); see also Cioffi v.
Averill Park Central School Dist. Bd of Ed., 444 F.3d 158, 168 (2d Cir. 2006) (little over three
months in not “too long for any inference of retaliatory motive and causation to be drawn”).
“[I]f the plaintiff establishes a prima facie case, ‘the burden shifts to the employer to
articulate some legitimate, non-retaliatory reason for the employment action.’” D’Andrea, --F.
App’x --, 2019 WL 1503923, * 2 (quoting Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 846
(2d Cir. 2013)).
Lastly, if a legitimate non-retaliatory reason for the adverse action is proffered, “the
burden shifts back to the plaintiff to show that the defendant’s reason is ‘a mere pretext for
retaliation.’ The plaintiff also ‘must show that retaliation was a ‘but-for’ cause of the adverse
action, and not simply a ‘substantial’ or ‘motivating factor in the employer’s decision.” Id.
(quoting Zann Kwan, 737 F.3d at 845). While the but-for reason need not be the only reason, a
plaintiff must show that “the adverse action would not have occurred in the absence of the
retaliatory motive.” Id. (internal quotation marks omitted).
B.

The Parties’ Positions

Based on the parties’ submission there is no dispute that Plaintiff engaged in protected
activity and that the Hospital was aware of this activity. Defendant maintains that there is no
causal connection between any protected activity and any adverse employment action. In

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addition, the Hospital has articulated legitimate, non-discriminatory reason for each employment
action and Plaintiff cannot demonstrate that such reasons are pretextual.
In response, Plaintiff asserts the following acts of retaliation: a poor review and write up
caused her probation period to be extended, her hours were reduced, and the hospital stripped
McCullough of her primary duties and decided not to continue her employment. (Pl.’s Mem. in
Opp. at 16.) Further, the causation element has been met as these acts closely followed her
complaint regarding Ricci. Finally, Plaintiff argues that there are questions of facts as whether
retaliation was the but-for cause of the adverse action as there is evidence that the reasons are
pretextual.
C.

Application
1.

Plaintiff has Established a Prima Facie Case

As noted earlier, there is no dispute regarding the first element of a retaliation claim.
Turning then to the second element, whereas Plaintiff asserts she was subject to an
adverse action, Defendant argue there was no adverse action taken against Plaintiff. However, in
making these assertions, both parties rely upon case law regarding the adverse action
requirement for a discrimination claim which requires that an adverse action be an action that
affects the terms and conditions of employment. As the Second Circuit recently reiterated in
Davis-Garett, “the harm element of a retaliation claim is not to be analyzed in the same way as
the harm from an alleged substantive act of discrimination.” 2019 WL 1510428, at *10. “Instead
the proper question for a retaliation claim is whether the alleged adverse action to which the
plaintiff was subjected could well have dissuaded a reasonable employee in his position from
complaining of unlawful discrimination.” Id. (internal quotation marks omitted). Thus “[t]he
scope of actions that may be materially adverse is . . . broader for purposes of retaliation claims

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than for discrimination claims.” Pape v. Dircksen & Talleyrand, Inc., 2019 WL 1441125, * 8
(E.D.N.Y. Mar. 31, 2019). Given the nature of the adverse actions alleged by Plaintiff viz. the
extension of her probationary period, this standard has been met. Unlike in a discrimination
context, “a negative performance review can constitute an adverse action for purposes of a
retaliation claim,” Cerni v. J.P. Morgan Secs. LLC, 208 F. Supp. 3d 533, 539 (S.D.N.Y. 2016)
(citing Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 91 (2d Cir. 2015), as can a
change in duties, Annunziata v. Int’l Bhd. of Elec. Workers Local Union # 363, 2018 WL
2416568, *18-19 (S.D.N.Y. May 29, 2018).
Finally, given the close temporal connection between Plaintiff’s December complaint
about Ricci and the above adverse actions there is evidence of a causal connection. Grant v.
Bethlehem Steel Corp., 622 F.2d 43, 45-46 (2d Cir. 1980) (eight month gap between EEOC
complaint and retaliatory act suggested causal relationship); see Espinal v. Goord, 558 F.3d 119,
129 (2d Cir. 2009) (inferring causal connection with six-month lapse); Gorman–Bakos, 252 F.3d
at 554 (same with five month lapse); see also Cioffi v. Averill Park Central School Dist. Bd of
Ed., 444 F.3d 158, 168 (2d Cir. 2006) (little over three months in not “too long for any inference
of retaliatory motive and causation to be drawn”).
2.

Defendant has Articulated Legitimate Non-retaliatory
Reasons for the Adverse Actions Alleged

The Hospital has articulated legitimate non-retaliatory reasons for each of the alleged
retaliatory acts.
Turning first to the extension of her probationary period, the Hospital has a “Mislabeled
and Unlabeled Specimens Policy,” which, it is undisputed, is uniformly enforced, was violated
by Plaintiff, and which provided for the assessment of 12 points. According to Defendant, given

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that Plaintiff’s first violation occurred during her initial three month probationary period, her
probationary period was extended.
Second, as articulated by the Hospital, the reduction of her hours was the result of her
advising that she had received a jury summons notice and that she was going to then take a week
off for vacation.
Finally, with regard to her termination, it was based on her having violated the Specimen
Policy twice while on probation.
3.

Plaintiff Has Failed to Submit Evidence of Pretext

While Plaintiff disputes the validity of the Hospital’s reasons set forth above, the
evidence submitted is insufficient to permit a reasonable trier of fact to conclude that the
proffered reasons were pretextual and that the adverse action would not have occurred in the
absence of the retaliatory motive.
First, the Hospital has submitted unrefuted evidence that it is not unusual to extend the
probationary period for Phlebotomy laboratory assistants and, in fact, other probationary
employees who made such errors were not given an extension, but rather terminated. Gulino Aff.
¶ 28 & Ex. K. Here, having committed a violation of the Labeling Policy during her initial
probationary period, Plaintiff was not terminated but rather received an extension of her
probation. During her deposition she admitted that she received an extension “to give [her] an
opportunity to demonstrate that [she] could perform [her] job . . . .” (Ex. A to Kaske Decl.
(McCullough Dep.) at 148:11-18.) Additionally, even if Plaintiff’s explanation for the first
violation of the labeling policy is credited, it remains undisputed that there was another incident,
on May 29, 2015, during the extension of her probationary period. And while Plaintiff disputes
having the reported conversation with Ms. Taranto, she does not dispute that Taranto reported

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that Plaintiff’s conduct made her uncomfortable. Nor does she dispute that the investigation into
Plaintiff’s complaint about Ricci harming patients failed to substantiate that allegation.
With respect to the alleged reduction of her hours, Plaintiff does not dispute that she
advised the Hospital she received a jury summons and that she was taking a vacation. Nor does
she dispute that the schedules for the Phlebotomy Department are created eight to twelve weeks
in advance and posted four weeks in advance. In her own words, she advised Evangelista “that
she was not required to serve on jury duty for the remaining two weeks” (Pl.’s 56.1 at ¶ 806
(emphasis added).) In other words, according to Plaintiff, it was after her commencement of jury
duty, and thus after the schedule had been created and posted, that she informed Evangelista that
she would not have to serve. Against that backdrop and considering Plaintiff’s position was per
diem, neither Plaintiff’s omission from the schedule or Evangelista telling her not to call her
about the schedule but rather wait for Evangelista’s call would permit a reasonable trier of fact to
infer retaliation. With respect to her vacation, Plaintiff points to nothing to indicate that she
advised Evangelista regarding her change in plans, no less that she advised her of such prior to
the relevant schedule being drawn. And, it is undisputed that when Plaintiff complained to
Gulino that she was not scheduled, he spoke to Evangelista to see if there were any available
shifts during the week Plaintiff had indicated she would be on vacation. Finally, regarding
Plaintiff’s complaint concerning Ricci, as well as her complaints of retaliation, Plaintiff points to
nothing to support that the Hospital’s investigation was lacking. As a result of the investigation
into Ricci’s comments, Ricci was disciplined. And while the investigation into Plaintiff’s
complaints of retaliation did not support that claim, Plaintiff nonetheless was able to take the

6

Although labeled at “Response to 76,” the statement referenced in text follows and is responsive to ¶ 80 of
Defendant’s 56.1 Statement.

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tests in her attempt to transfer to another department and, when she did not pass any of those
tests, was given assistance in finding another position outside the Hospital.
CONCLUSION
For the reasons set forth above, Defendant’s motion for summary judgment is granted.
The Clerk of Court is directed to enter judgment accordingly and to close this case.
SO ORDERED.
Dated: Central Islip, New York
April 19, 2019

s/ Denis R. Hurley
Denis R. Hurley
United States District Judge

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