Saunders v. County Of Nassau et al

Filing 53

MEMORANDUM AND ORDER ADOPTING REPORT AND RECOMMENDATIONS granting 39 Motion for Summary Judgment; adopting Report and Recommendations as to 48 Report and Recommendations. For the stated reasons, Plaintiff's objections are OVERRULED, the R&R is ADOPTED as stated, and Defendants' motion for summary judgment is GRANTED. The Clerk of the Court is directed to mark this case CLOSED. So Ordered by Judge Joanna Seybert on 4/28/2020. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------X
PAMELA SAUNDERS,
Plaintiff,
MEMORANDUM & ORDER
17-CV-1394(JS)(ARL)

-against-

COUNTY OF NASSAU, ROGER SOKENIS,
STEVEN O’MALLEY, RONALD ROGERS,
in their official and individual
capacities,
Defendants.
-----------------------------------X
APPEARANCES
For Plaintiff:
Rick Ostrove, Esq.
Andrew C. Costello, Esq.
Leeds Brown Law, P.C.
One Old Country Road, Suite 347
Carle Place, New York 11514
For Defendants:

Jillian Jagling, Esq.
Steven Anthony Torres, Esq.
West Group Law PLLC
81 Main Street, Suite 510
White Plains, New York 10601
Peter Adelman, Esq.
The Law Offices of Peter Adelman, LLC
95 6th Avenue
Brooklyn, New York 11217

SEYBERT, District Judge:
Plaintiff Pamela Saunders (“Plaintiff”) commenced this
action against defendants County of Nassau (the “County”), Roger
Sokenis (“Sokenis”), Steven O’Malley (“O’Malley”), and Ronald
Rogers (“Rogers”) (collectively, “Defendants”) alleging violations
of Title VII of the Civil Rights Act of 1964, New York State Human
Rights Law (“NYSHRL”), and the Fourteenth Amendment as enforced by

42

U.S.C.

§

retaliatory

1983
acts

arising
on

the

out

of

alleged

discriminatory

and

basis

of

race.

(Compl.,

1.)

D.E.

Currently pending before the Court is the Report and Recommendation
of

Magistrate

Judge

Arlene

R.

Lindsay

(“R&R,”

D.E.

48),

recommending that the Court grant Defendants’ motion for summary
judgment (Mot., D.E. 39; Defs. Br., D.E. 40-67; Pl. Opp., D.E. 43;
Defs. Reply, D.E. 44; Pl. Sur-Reply, D.E. 46).

For the following

reasons, Plaintiff’s objections (Pl. Obj., D.E. 50; Defs. Obj.,
D.E.

52)

are

OVERRULED,

the

R&R

is

ADOPTED

as

stated,

and

Defendants’ motion is GRANTED.
BACKGROUND
The Court presumes familiarity with the facts and ADOPTS
the detailed factual summary provided by Judge Lindsay.

(R&R at

1-17); Ford v. Miller, No. 18-CV-1815, 2019 WL 4673445, at *1
(S.D.N.Y. Sept. 25, 2019).

The facts are recited herein as

relevant to the Court’s analysis, and unless noted, are not in
dispute.1
I.

The Parties
In 1995, the Nassau County Sheriff’s Department hired

Plaintiff, who is black, to work as a corrections officer at the
Nassau County Correctional Center (“NCCC”).

(Compl. ¶¶ 13-14;

The facts are drawn from the parties’ Local Civil Rule 56.1
Statement and Counterstatement. (Defs. 56.1 Stmt., D.E. 25; Pl.
56.1 Stmt., D.E. 26.)
1

2

Defs. 56.1 Stmt. ¶ 1.)
Medical Unit.

In 2005, Plaintiff was assigned to NCCC’s

(Defs. 56.1 Stmt. ¶ 1.)

O’Malley also worked in

the Medical Unit from 1998 to 2017, when he was transferred to the
Security Unit.

(Defs. 56.1 Stmt. ¶ 2.)

Rogers supervised various

NCCC employees and units, including the Medical and Security Units,
from 2005 until his retirement in December 2015. (Defs. 56.1 Stmt.
¶ 3.)

Sokenis, one of Plaintiff’s supervisors, worked in the

Medical Unit from 2011 until his retirement in December 2015.
(Defs. 56.1 Stmt. ¶ 4.)
II.

Facts
On

August

30,

2013,

Plaintiff

submitted

an

inter-

department memorandum (the “2013 Memorandum”) to O’Malley wherein
she

wrote,

among

other

things,

that

she

was

“the

target

of

harassment and discrimination” and did not “take this matter
further” due to retaliation, was called a “rat” for protecting
black inmates, and that she was “blacklisted.”
Estes Decl., Ex. 7, D.E. 40-9.)
Memorandum

to

the

Affirmative

(See 2013 Memo.,

O’Malley forwarded the 2013
Action

Unit

pursuant

to

the

Department’s Regulations and Equal Employment Opportunity (“EEO”)
Policy.

(Defs. 56.1 Stmt. ¶¶ 9-10.)

Andre Guilty (“Guilty”), an

Affirmative Action Specialist assigned to the Bias Unit, met with
Plaintiff who stated that she did not want to file a complaint
because she intended to retain a lawyer and because “she had no
faith in the office or the process.”
3

(Defs. 56.1 Stmt. ¶¶ 7, 12;

Pl. 56.1 Stmt. ¶ 12; Guilty Dep., Estes Decl., Ex. 9, D.E. 40-11,
24:24-25:24.)
Two years later, on June 30, 2015, Plaintiff submitted
an EEO complaint (the “EEO Complaint”) alleging discrimination and
retaliation on the basis of race, arising out of three incidents,
summarized below.
Guilty

(EEO Compl., Estes Decl., Ex. 50, D.E. 40-50.)

forwarded

the

EEO

Complaint

to

Mary

Ostermann

(“Ostermann”), the Director of Equal Opportunity Employment for
the Nassau County Office of Human Resources. (Pl. 56.1 Stmt. ¶ 15;
Defs. 56.1 Stmt. ¶ 8.)
an

EEO

Complaint,

Ostermann testified that upon receipt of

she,

along

with

EEO

Representatives,

and

Affirmative Action Officers, determine if a complaint is a formal
complaint, a limited inquiry, or not appropriate for further EEO
review.

(Defs. 56.1 Stmt. ¶ 16.)

Ostermann testified that in a

limited inquiry, the EEO Office investigates and a limited inquiry
turns into an investigation where a protected class is implicated
and an adverse employment action occurred.
¶ 17.)

(Defs. 56.1 Stmt.

The EEO Office determined that the EEO Complaint did not

implicate any violations of EEO or department policies.

(Defs.

56.1 Stmt. ¶ 21.)
As

for

the

substance

of

the

EEO

Complaint,

first,

Plaintiff wrote that on December 24, 2014, a Medical Unit nurse
needed an officer escort but Plaintiff left the building without
approval from her supervisor.

(Defs. 56.1 Stmt. ¶¶ 82-83.)
4

Plaintiff alleges another officer “berated” her and was verbally
abusive.

(Defs. 56.1 Stmt. ¶ 84; Pl. 56.1 Stmt. ¶ 84.)

A few

days later, Sokenis suggested that Plaintiff seek assistance from
the Employee Assistance Program (“EAP”) because she told him “you
don’t know what I’m going through.”

(Defs. 56.1 Stmt. ¶ 86.)

On

January 5, 2015, Plaintiff sent Sokenis a memorandum, titled
“Verbal Abuse in an Aggressive Threatening Manor by Correctional
Staff,” describing the December 24, 2014 incident, arguing that
her

EAP

referral

was

unwarranted,

and

questioning

officers’ conduct did not warrant an EAP referral.
Memo., Estes Decl. Ex. 33, D.E. 40-30.)

why

other

(Jan. 5, 2015

After this incident, at

the request of Rogers, Plaintiff submitted additional memoranda
expanding on her allegations.

(Jan. 6, 2015 Memo., Estes Decl.,

Ex. 34, D.E. 40-31; Jan. 8, 2015 Memo., Ex. 45, D.E. 40-42; Jan. 9,
2015 Memo., Estes Decl., Ex. 46, D.E. 40-43.)
On January 7, 2015, Rogers sent an email to O’Malley
asking

him

to

“keep

the

officers

involved

in

this

incident

separate” and that “Sokenis should have minimal contact with
witnesses present when dealing with” Plaintiff.

(Jan. 7, 2015

Email, Estes Decl. Ex. 35, D.E. 40-32.)
Second, Plaintiff wrote that on February 5, 2015 she was
denied overtime “in favor of white officers.”
p. 3.)

(EEO Compl. at ECF

Specifically, two overtime posts were available, one for

3.5 hours in the Core building and another for 2.75 hours in the
5

832 building.

(Defs. 56.1 Stmt. ¶ 109.)

Although Plaintiff

requested the 3.5 hour post, Sokenis assigned her to the 2.75 hour
post because Dwyer and Sokenis were working in the Core Building
and Sokenis was instructed to keep Plaintiff and Dwyer apart.
(Defs. 56.1 Stmt. ¶ 109.)
On February 20, 2015, Plaintiff sent a memorandum to the
First Vice President of the Nassau County Sheriff’s Correction
Officers Benevolent Association and a union delegate on release
from

the

NCCC

asking

for

distribution of overtime.

an

investigation

into

the

(Defs. 56.1 Stmt. ¶¶ 13-14.)

unequal
Judge

Lindsay provided a detailed summary for context and explained the
manner in which overtime is distributed. (See R&R at 8-10.) Judge
Lindsay further explained that:
In 2013, Saunders earned $67,304.80 in overtime pay,
more than any other officer who worked at the NCCC.
Consistent with overtime rules, Saunders’ placement as
the top overtime earner in the NCCC could be taken into
account in assigning future overtime. In 2014, Saunders
was the fifty-seventh highest overtime earner among the
over 800 corrections officers, earning $38,844.10. In
2015, Saunders dropped eleven spots to the sixty-eighth
highest overtime earner, earning $26,871.27. Saunders
who in 2014 through July 2015 was assigned to the Medical
Unit asserts that although she regularly applied for
overtime with the Visiting and Security units her
overtime pay dropped during this period as a direct
result of her having complained about Lima and filing
her 2013 [M]emo. The defendants counter this assertion
noting that the Visiting Unit overtime log books for
2014 reveals that Saunders never signed up for overtime
and only signed up for overtime on eleven days in July
2015. Saunders counters there are other ways corrections
officers can be added to the overtime list other than

6

physically signing the log books.2 Saunders admits,
however, that there are a multitude of reasons why
overtime can fluctuate from year to year including
fluctuations in the amount of money spent by the County
on overtime. In addition, the number of officers
working, various management initiatives and whether an
officer has taken leave can also cause fluctuations in
overtime. Saunders also acknowledges that overtime in
the Visiting Unit was at a five-year low in 2015.
Indeed, by 2016, Saunders was once again a top overtime
earner, earning $61,106.70, and in 2017, Saunders was
the highest overtime earner amongst of all corrections
officers, earning $129,953.47.
(R&R at 9-10 (internal citations omitted).)
Third,

Plaintiff

described

that

while

working

an

overtime shift on June 23, 2015, Plaintiff was assigned to escort
an inmate to the hospital.

(EEO Compl. at ECF p. 4.)

Although

Sokenis instructed her to wait, Plaintiff went to the bathroom.
(EEO Comp. at ECF p. 4).
officer

to

the

As a result, Sokenis assigned another

transport.3

(Defs.

56.1

Stmt.

¶

119.)

On

Plaintiff disputes this fact by arguing another corrections
officer did not record all of her phone requests for overtime
and by citing to deposition testimony of Joseph Cavanaugh that
the same officer assigning overtime would “pass [Plaintiff] over
for overtime opportunities” in favor of a white officer. (Pl.
56.1 Stmt. ¶ 42.) Upon review of the docket, the Court notes
that neither party annexed the Joseph Cavanaugh deposition
transcript as an exhibit and the Court cannot consider these
allegations as admissible evidence.
2

Plaintiff disputes this fact in a long narrative. (Pl. 56.1
Stmt. ¶ 119 (citing to response in Pl. 56.1 Stmt. ¶ 115).) Upon
review of Plaintiff’s response, the Court finds there is no
dispute that Sokenis assigned another corrections officer to the
hospital run while Plaintiff was in the bathroom. Plaintiff
faults another non-party corrections officer for not informing
her “anyone was looking for her” or that “he was assigned to
3

7

June 24, 2015,

both

department memoranda.

plaintiff

and

Sokenis

submitted

inter-

(Pl. June 2015 Memo., Estes Decl., Ex. 54,

D.E. 40-54; Sokenis June 2015 Memo., Estes Decl., Ex. 44, D.E. 4041.)

Sokenis wrote that Plaintiff’s “actions of not being on post

caused an approximate half hour delay in bringing the [inmate to
the hospital] for treatment, and also the time wasted looking for
her.

I believe she is not telling the truth.

long

history

Officers.

of

incidents

with

fellow

[Plaintiff] has a

Officers

and

Superior

The lack of her accountability for her actions is

causing problems for my ability to supervise the Medical Unit” and
requested Plaintiff’s transfer “out of the Medical Unit and put
under the direct supervision of a Corporal due to her inability to
go to[ ] or say on her assigned post.”4
at 2.)

(Sokenis June 2015 Memo.

Rogers thereafter recommended Plaintiff’s reassignment to

the Security Unit.

(Defs. 56.1 Stmt. ¶ 125.)

On June 24, 2015, Plaintiff was placed under Corporal
supervision (Defs. 56.1 Stmt. ¶ 132) and effective June 25, 2015,

cover her post” based on her
racist and “did not like her
Sokenis about his treatment”
¶ 115.) This, however, does
was in the bathroom, and not

belief that this other officer is
because she complained to Sgt.
of black inmates. (Pl. 56.1 Stmt.
not dispute the fact that Plaintiff
at her post.

Prior to this request, Sokenis had requested his own transfer
out of the Medical Unit after the February 5, 2015 incident.
(Defs. 56.1 Stmt ¶ 112.)
4

8

was reassigned to the Security Unit5 (Defs. 56.1 Stmt. ¶ 127).

On

July 13, 2015, Plaintiff’s reassignment orders were amended to
permit Plaintiff to work under the supervision of a Sergeant for
the purposes of overtime if a given area did not have a Corporal
assigned.

(Defs. 56.1 Stmt. ¶ 138.)

Corporal supervision was lifted.

On March 23, 2017, the

(Defs. 56.1 Stmt. ¶ 139.)

ANALYSIS
I.

Legal Standards
A district court “may accept, reject, or modify, in whole

or in part, the findings or recommendations made by the magistrate
judge.”

28 U.S.C. § 636(b)(1)(C); see also FED. R. CIV. P. 72.

Where a party “makes only conclusory or general objections, or
simply reiterates [the] original arguments, the Court reviews the
Report and Recommendation only for clear error.”

Pall Corp. v.

Entegris, Inc., 249 F.R.D. 48, 51 (E.D.N.Y. 2008) (quoting Barratt
v. Joie, No. 96-CV-324, 2002 WL 335014, at *1 (S.D.N.Y. Mar. 4,
2002)). The district judge must evaluate proper objections de novo
and “may accept, reject, or modify the recommended disposition.”
Fed. R. Civ. P. 72(b)(3).
II.

Plaintiff’s Objections
A. Hostile Work Environment

In July 2014, Plaintiff requested reassignment to the Security
Unit. (July 2, 2014 Memo., Estes Decl., Ex. 31, D.E. 40-28.)
5

9

In opposition to summary judgment, Plaintiff proffered
additional facts to support her hostile work environment claim.
As recited by Judge Lindsay, Plaintiff alleges that “sometime in
late March or early April 2013, [Plaintiff] learned from other
officers at the NCCC that” corrections officer John Lima (“Lima”)
made racist comments regarding black inmates and that she witnessed
an incident where Lima was aggressive with a black inmate.
at 3-4.)

(R&R

Plaintiff alleges that she complained to a Sergeant that

another officer called her an “inmate lover,” believed Plaintiff
filed a discrimination lawsuit against Lima, and said he would not
give her overtime in the Security Unit.

(R&R at 4.)

Plaintiff

approached the officer who, according to Plaintiff, admitted to
the comments and informed her she was “blackballed” and that no
one would hire her for overtime.

(R&R at 5-6.)

Plaintiff first objects that Judge Lindsay applied the
wrong legal standard to her hostile work environment claim and
therefore incorrectly found that “none of [the claimed of comments]
amount of a constructive discharge.”

(R&R at 38.)

Plaintiff

argues that “the standard is lower—-all that is required is that
‘the harassment is of such quality or quantity that a reasonable
employee would find the conditions of her employment altered for
the worse.’”

(Pl. Obj. at 10 (quoting Whidbee v. Garzelli Food

Specialties, Inc., 223 F.3d 62, 70 (2d Cir. 2000) (emphasis
omitted.)
10

To
workplace

sustain

was

so

a

claim,

severely

Plaintiff

“must

permeated

show

with

that

the

discriminatory

intimidation, ridicule, and insult that the terms and conditions
of her employment were thereby altered.”

Jian Li v. Chang Lung

Grp. Inc., No. 16-CV-6722, 2020 WL 1694356, at *11 (E.D.N.Y.
Apr. 7, 2020) (internal quotation marks and citation omitted)
(emphasis added).

“‘[W]hether racial slurs constitute a hostile

work environment typically depends upon the quantity, frequency,
and severity of those slurs, considered cumulatively in order to
obtain a realistic view of the work environment.’”

Id. (quoting

Fenner v. News Corp., No. 09-CV-9832, 2013 WL 6244156, at *13
(S.D.N.Y. Dec. 2, 2013)).

When comparing the above-cited standard

to the R&R, the Court concludes that Judge Lindsay applied the
correct standard and OVERRULES this objection.
Plaintiff also asserts the conclusory objection that
summary

judgment

standard,

given

is
the

inappropriate
severity

“[a]pplying

and

the

the

pervasiveness

correct
of

the

comments.” (Pl. Obj. at 11.) Having determined that Judge Lindsay
applied

the

correct

legal

standard,

Lindsay’s analysis for clear error.

the

Court

reviews

Judge

Finding no clear error, the

Court agrees that none of the complained of comments “rise to the
level of severity required to state a claim for hostile work
environment.”

(See R&R at 37-38.)

this portion of the R&R.
11

Accordingly, the Court ADOPTS

B. Discrimination Claims
Plaintiff next objects to Judge Lindsay’s recommendation
that the Court dismiss the Title VII, NYSHRL and Section 1983 race
discrimination claims.
Plaintiff

argued

in

(Pl. Obj. at 11-17.) As relevant here,

opposition

to

summary

judgment

that

the

following constituted adverse employment actions: (1) the denial
of overtime (as a general principle) and (2) placement under
corporal supervision and her transfer to the medical unit that
resulted in her placement at the bottom of the Security Unit’s
overtime list thereby costing her overtime opportunities.
Opp. at 13-14.)

(Pl.

Judge Lindsay found that “none of the actions

relied upon by Saunders in support of her race discrimination claim
amount to a materially adverse change in the terms and conditions
of her employment” and “there is an absence of direct evidence of
discriminatory intent in the record.”

(R&R at 30.)

As a preliminary matter, with respect to the objections:
(1) the denial of overtime and a loss of overtime opportunities
alone

constitutes

(2) regarding

an

adverse

discriminatory

action

intent

(Pl.

(Pl.

Obj.

Obj.

at

at

12)

15-17),

and
a

comparison between Plaintiff’s underlying brief and her objections
reveal

that

she

has

“done

little

more

than

rearrange

arguments, often using largely identical wording.”

[her]

Media Glow

Digital, LLC v. Panasonic Corp. of N. Am., No. 16-CV-7907, 2019 WL
1434311,

at

*3

(S.D.N.Y.

Mar.
12

29,

2019)

(subsequent

history

omitted) (compare Pl. Opp. at 13 (restating the general principal
that a denial of and lost overtime opportunities constitutes an
adverse action) with Pl. Obj. at 12 (same); compare Pl. Opp. at
15-16 (arguing that Plaintiff was “treated differently than white
officers” and was “subject to disparate treatment” to argue an
inference of discrimination) with Pl. Obj. at 15-17 (same).)

As

such, Plaintiff has “merely reiterated [her] original arguments
and the Court will, therefore, review this part of the Report for
clear error.”

Media Glow, 2019 WL 1434311, at *3.

Finding no

clear error, the Court OVERRULES these objections and ADOPTS those
portions of the R&R.
As for Plaintiff’s transfer to the Security Unit, Judge
Lindsay determined that the transfer, and any resulting loss in
overtime opportunities, did not constitute an adverse action. (R&R
at 27-28.)

Judge Lindsay reasoned that she was “guided by the

principles set forth in” Brown v. City of Syracuse, 673 F.3d 141
(2d

Cir.

2012)

when

finding

that

Plaintiff’s

“transfer

was

certainly undertaken in response to her supervisor’s complaint
that she lacked accountability and that her actions [caused] a
problem in his ability to supervise the Medical Unit” and because
the transfer “came on the heels of her having admittedly left her
post in violation of NCCC Regulations.”

(R&R at 27.)

Plaintiff

objects and argues that Judge Lindsay’s reliance on Brown was
misplaced because Plaintiff’s reassignment to the Security Unit
13

was not a form of discipline and whether a disciplinary policy was
“properly enforced” is an issue of fact.
However,

because

Plaintiff

concedes

that

(Pl. Obj. at 14.)
her

placement

under

corporal supervision was not “actually discipline” there is no
issue of fact as to whether a disciplinary policy was properly
enforced.

(Pl. Obj. at 14.)

Nonetheless, the Court agrees with

Judge Lindsay’s analysis and Plaintiff’s objections regarding
Judge Lindsay’s reliance on Brown are OVERRULED.
Plaintiff

also

argues

that

Judge

Lindsay

erred

in

concluding that her transfer to the Security Unit was not an
adverse

action

because

it

“shows

a

total

disregard

for

the

realities of being a [corrections officer]” because “[i]nteraction
with more inmates makes it more likely a CO can be harmed or even
killed,” and is “far more significant than ‘lost pay.’”
at 13.)

(Pl. Obj.

This argument, however, was not raised before Judge

Lindsay and is therefore not properly before this Court for
consideration. See Brown v. Smith, No. 09-CV-4522, 2012 WL 511581,
at *1 (E.D.N.Y. Feb. 5, 2012). Therefore, the Court also OVERRULES
this objection and adopts Judge Lindsay’s finding that the transfer
to the Security Unit was not an adverse action.6

Kennedy v. Adamo,

Indeed, assuming, without deciding, Plaintiff’s transfer was
considered an adverse employment action, Defendants’ proffered
reasons for the transfer, as articulated by Judge Lindsay (R&R
at 27), are legitimate and non-discriminatory. Phillips v. Long
Island Rail Rd. Co., No. 13-CV-7317, 2019 WL 1757176, at *15
(E.D.N.Y. Mar. 4, 2019), R&R adopted, 2019 WL 1758079 (E.D.N.Y.
6

14

No. 02–CV–1776, 2006 WL 3704784, at *3 (E.D.N.Y. Sept. 1, 2006)
(collecting cases).
Next, Judge Lindsay found that “neither the placement
under

corporal

opportunities
materially

supervision

associated

adverse

nor

with

action”

the

that

alleged

loss

supervision

because

nineteen

in

overtime

amounted
days

to

a

later,

Plaintiff’s “supervision assignment was amended so that she could
work under the direct supervision of a sergeant for the purposes
of overtime if a given area did not have [a] corporal assigned”
and Plaintiff did not offer “evidence to suggest that she actually
lost overtime opportunities in the nineteen days prior to that
amendment.” (R&R at 29-30 (citations omitted).) Plaintiff objects
and argues that “the loss of overtime opportunities can be an
adverse action, even if it was only for 19 days.”

(Pl. Obj. at

15.)
However, there is nothing in the record to support the
finding that Plaintiff lost overtime opportunities for the period
between her placement under corporal supervision and the date that
her assignment was amended.

In support, Plaintiff cites to

Paragraph 133 of her Local Rule 56.1 statement that states “[a]s

Mar. 25, 2019). Plaintiff’s underlying argument that “placement
on corporal supervision and her transfer from the Medical Unit
occurred for a non-sensical reason as she did nothing wrong”
does not establish that “Defendant’s reason for [the adverse
employment action] is pretextual.” (Pl. Opp.at 22-23.)
15

a result of being placed under corporal supervision, an officer
may lose overtime opportunities . . .”
(emphasis

added).)

Upon

review

of

(Pl. 56.1 Stmt. ¶ 133
that

paragraph,

and

the

underlying evidence cited in support, wholly missing is evidence
that Plaintiff actually lost overtime opportunities during those
nineteen days.

As Plaintiff did not proffer evidence that “she

was denied overtime frequently enough to constitute a change in
the terms and conditions of her employment,” her claims of race
discrimination in connection with her placement under corporal
supervision necessarily fail and her objections are OVERRULED.
See Collymore v. City of N.Y., 767 F. App’x 42, 46 (2d Cir. 2019).
Finally, Plaintiff argues that the R&R incorrectly found
that “the manner in which her [EEO] complaints were investigated
did not give rise to an adverse employment action” (R&R at 29)
because

“despite

identifying

eighteen

individuals

in

her

EEO

complaint, only one was interviewed (the bad actor)” and a “jury
could infer that this was unreasonable and inadequate” (Pl. Obj.
at 14).

These objections are conclusory and general and the Court

therefore reviews Judge Lindsay’s analysis for clear error.

See,

e.g., Oxford Techs., Inc. v. E./W. Indus., Inc., No. 18-CV-1992,
2019 WL 4291584, at *3 (E.D.N.Y. Sept. 11, 2019). Finding no clear
error, the Court ADOPTS the portion of the R&R that found Plaintiff
“has not presented any nonconclusory evidence that would permit a

16

reasonable jury to conclude that the defendants had failed to
respond in a reasonable and adequate manner.”

(R&R at 28-29.)

Therefore, the Court agrees with the R&R’s conclusion
that Plaintiff did not suffer an adverse action and her race
discrimination claims are DISMISSED.
III. Retaliation Claims7
With respect to Plaintiff’s retaliation claims, Judge
Lindsay found for “the same reason previously stated,” Plaintiff’s
alleged adverse actions arising out of the placement under corporal
supervision, transfer to the Security Unit, and the investigation
of her EEO Complaint “do not amount to materially adverse action.”
(R&R at 34.)

Plaintiff objects that Judge Lindsay incorrectly

applied the discrimination standard and argues these actions “are
adverse applying the lower [retaliation] standard” and that she
“was subjected to retaliatory adverse actions, or so a jury could
infer.”

(Pl. Obj. at 14-15, 18.)

Plaintiff also faults Judge

Lindsay for “mesh[ing]” the adverse action analysis with the
causation analysis under the burden-shifting standard adopted in

In support of her retaliation claims, Plaintiff argued in
opposition to summary judgment that the following were adverse
employment actions: (1) the denial of overtime opportunities by
a corrections officer who told her she was “blackballed” and
called Plaintiff a “rat” and “inmate lover;” (2) a decline in
overtime pay in 2014 after complaining about Lima’s abuse of a
black inmate; (3) the placement under corporal supervision and
the resulting loss in overtime opportunities; (4) the transfer
to the Security Unit; and (5) the investigation into Plaintiff’s
EEO complaint was unreasonable. (Pl. Opp. at 18-19.)
7

17

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–03, 93 S. Ct.
1817, 1824, 36 L. Ed. 2d 668 (1973), when concluding that the
denial of overtime opportunities was not a retaliatory adverse
action.

(Pl. Obj. at 18-24.)
The Court need not address these objections because

assuming, without deciding, that Plaintiff established a prima
facie case of retaliation, Defendants articulated “legitimate,
nondiscriminatory reason[s]” for the alleged adverse employment
actions.

Lawrence v. Chemprene, Inc., No. 18-CV-2537, 2019 WL

5449844, at *10-11 (S.D.N.Y. Oct. 24, 2019) (collecting cases and
finding it appropriate to “skip past the first step of McDonell
Douglas” because the “burden of establishing a prima facie case is
not onerous, and has been frequently described as minimal.”)
(internal quotation marks and citations omitted).

Upon review of

the record, the Court finds that Defendants’ proffered reasons, as
detailed

by

Plaintiff’s

Judge
EEO

Lindsay,

Complaint

for:

the

(detailed

limited

at

R&R

at

inquiry
28-29),

into
for

reassigning Plaintiff to the Security Unit (detailed at R&R at 2628), and for an alleged decline in overtime and lost overtime
opportunities

in

connection

with

these

actions,

including

placement under corporal supervision (detailed at R&R at 8-10, 35-

18

36)

are

legitimate,

nondiscriminatory,

and

nonretaliatory.8

Lawrence, 2019 WL 5449844, at *11.
The McDonnell Douglas analysis thus shifts “the burden
to

Plaintiff

to

show

that

the

Defendants’

legitimate,

nondiscriminatory justifications for” the alleged adverse actions
were “were mere pretexts for discrimination.”
5449844, at *12.

Lawrence, 2019 WL

“‘In such situations, plaintiff carries the

ultimate burden of persuasion and must produce evidence such that
a rational finder of fact could conclude that the adverse action
taken

against

her

was

more

discriminatory animus.’”

likely

than

not

a

product

of

Id. (quoting Kerman-Mastour v. Fin.

Indus. Regulatory Auth., Inc., 814 F. Supp. 2d 355, 370 (S.D.N.Y.
2011)). “‘Mere speculation is insufficient; a plaintiff must offer
specific, admissible evidence of pretext.’”

Id. (quoting Fall v.

N.Y. State United Teachers, 289 F. App’x 419, 421 (2d Cir. 2008)
(summary order)).
Plaintiff’s

objections

regarding

mirror the arguments in her underlying brief.
at

18-21

(arguing

direct

evidence,

“pretext”

(Compare Pl. Obj.

temporal

pretext) with Pl. Opp. at 20-23 (same).)

largely

proximity,

and

Even considering these

Plaintiff’s objection to the chart analyzing NCCC’s overtime
expenses are OVERRRUELD. (Pl. Obj. at 23-24; Overtime Expenses,
Estes Decl., Ex. 29, D.E. 40-26.) The chart was properly
attached to the Declaration of Michael Grunwald and there are
thus no concerns regarding authenticity or admissibility. (See
Grunwald Decl., Estes Decl., Ex. 15, D.E. 40-17, at ¶¶ 71-93.)
8

19

arguments, the Court finds that Plaintiff “offers no other evidence
on the record, such as testimony of a third party or written
documents, that could lead to any sort of reasonable inference”
that Defendants were discriminating and retaliating on the basis
of race when conducting a limited inquiry into Plaintiff’s EEO
Complaint,

placing

Plaintiff

under

corporal

supervision,

reassigning Plaintiff to the Security Unit, and for the alleged
decline in overtime and overtime opportunities in connection with
these actions.

Ghirardelli v. McAvey Sales & Serv., Inc., 287 F.

Supp. 2d 379, 391 (S.D.N.Y. 2003), aff’d sub nom. Ghirardelli v.
McAvey Sales & Servs., Inc., 98 F. App’x 909 (2d Cir. 2004).
Indeed, “if this matter were to go to trial, a jury would
be presented, on the one hand, with [Plaintiff’s] conclusory and
unsubstantiated allegations that [race] must have been a factor in
[the alleged adverse actions], and, on the other hand, with
[Defendants’] sworn testimony that it was not.

Such a conflict

does not raise a genuine issue of material fact; rather, it pits
sworn testimony against speculation, conjecture and self-serving
conclusions.”

Id. (collecting cases).

Thus, after a review of

the entire record in context of the legitimate reasons Defendants
proffered for the alleged adverse actions, and assuming Plaintiff
“could establish the elements of a prima facie case of retaliation,
a rational jury could not conclude that the grounds [Defendants]
articulated are false and merely a pretext for retaliation for
20

protected activity.”

Id. (citing Gonzalez v. Beth Israel Med.

Ctr., 262 F. Supp. 2d 342, 357–58 (S.D.N.Y. 2003)).

Therefore,

Plaintiff’s retaliation claims are DISMISSED.
CONCLUSION
For

the

stated

reasons,

Plaintiff’s

objections

are

OVERRULED, the R&R is ADOPTED as stated, and Defendants’ motion
for summary judgment is GRANTED.

The Clerk of the Court is

directed to mark this case CLOSED.

SO ORDERED.

/s/_JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated: April
28 , 2020
Central Islip, New York

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