Hexemer v. General Electric Company et al

Filing 78

MEMORANDUM-DECISION and ORDERED, that Defendants Motion (Dkt. No. 65) for summary judgment is GRANTED in part and DENIED in part; and it further ORDERED, that Defendants Motion (Dkt. No. 65) for summary judgment is GRANTED as to Plaintiffs (1) Title VII Claim against all Defendants; and (2) § 1981 and NYSHRL retaliation claims against Defendant General Electric. Defendants Motion (Dkt. No. 65) for summary judgment is DENIED as to Plaintiffs § 1981 and NYSHRL retaliation claims against Defendants GID and Jose Garcia; and it is further ORDERED, that Defendant General Electric is DISMISSED from the case. Signed by Senior Judge Lawrence E. Kahn on June 29, 2015. (sas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
SOHEILA HEXEMER
Plaintiff,
-against-

1:12-CV-1808 (LEK/CFH)

GENERAL ELECTRIC COMPANY;
et al.,
Defendants.

MEMORANDUM-DECISION and ORDER
I.

INTRODUCTION
Plaintiff Soheila Hexemer (“Plaintiff”) commenced this employment discrimination action

on December 10, 2012, against Defendants General Electric Company (“GE”), GID Global, LLC
(“GID”), and Jose Garcia (“Garcia”) (collectively, “Defendants”). Dkt. No. 1 (“Complaint”).
Presently before the Court is Defendants’ Motion for summary judgment. Dkt. Nos. 65 (“Motion”);
65-30 (“Memorandum”). For the following reasons, the Motion is granted in part and denied in
part.
II.

BACKGROUND
A. Plaintiff’s Employment with GID
Jose and Guillermo Garcia are the owners and general managers of Grupo de Integracion

Digital SA de CV (“GRUPO”). Dkt. Nos. 65-29 (“Defendants’ Statement of Material Facts”) ¶¶ 12; 71 (“Plaintiff’s Counter-Statement of Material Facts”) ¶¶ 1-2. GRUPO and GE are parties to a
Master Service Agreement, under which GRUPO uses GID as its vendor to provide personnel for
various projects at GE. Defs.’ SMF ¶¶ 1, 3; Pl.’s SMF ¶¶ 1, 3.

Plaintiff was born in Iran and is of Persian descent. Pl.’s SMF ¶ 72. Plaintiff immigrated to
the United States in 1977 and became a United States citizen in 1988. Id. ¶ 73. In January 2011,
Plaintiff began working for GID as a project manager and was responsible for managing a database
of documents at GE’s Schenectady office (“Database Project”). Defs.’ SMF ¶¶ 9, 13; Pl.’s SMF
¶¶ 9,13. The Database Project began in January 2011 and was initially estimated to last for one
year. Defs.’ SMF ¶ 7. Plaintiff contends that she was never informed that the project was only
expected to last a year. Pl.’s SMF ¶ 7. Plaintiff negotiated the terms of her employment directly
with GID and executed a formal employment agreement with Jose Garcia on December 14, 2010.
Defs.’ SMF ¶¶ 10-11; Pl.’s SMF ¶¶ 10,11. During her employment with GID, Plaintiff was
supervised by Jake Tefft (“Tefft”), a GID employee who worked at GE’s Schenectady campus.
Defs.’ SMF ¶¶ 14, 17; Pl.’s SMF ¶¶ 14, 17.
The Database Project was still incomplete at the end of 2011, prompting GE and GRUPO to
extend it until June 2012. Defs.’ SMF ¶¶ 29-30; Pl.’s SMF ¶¶ 29-30. The Database Project was
completed in May 2012. Defs.’ SMF ¶ 32. Plaintiff was never informed that her employment was
expected to end when the Project was complete. Pl.’s SMF ¶ 32. Jose Garcia contends that Plaintiff
should have been aware that her employment was guaranteed only for the duration of the particular
project she was hired to complete. Dkt. No. 65-7 (“Garcia Affidavit”) ¶ 28.
On May 21, 2012, Jose Garcia wrote an email to his brother, Guillermo, suggesting that GID
try to place Plaintiff on another project, and if they were not successful by October, terminate her
employment with GID. Defs.’ SMF ¶¶ 34-35. Specifically, the email states “What do you think
about us leaving her so we can see if I can get another project as far as it is feasible? It is risky but
in this way the other project would be easier to start.” Garcia Aff., Ex. A. The email went on to
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state, “[i]f nothing happens by October, then I will send Soheila her letter of termination.” Id. GID
routinely staffed contractors on other projects after a contractor’s initial project was complete. Pl.’s
SMF ¶ 7. After completion of the Database Project in May, Plaintiff was then assigned to provide
general support for GRUPO’s information management team in Mexico at GE’s Schenectady
facility (the “TOC project”). Defs.’ SMF ¶ 36. Plaintiff was unaware that the TOC assignment was
temporary. Pl.’s SMF ¶ 36. GID claims that Plaintiff overstated her qualifications for working with
computer programs and software, and that she was not suited for working on this project. Defs.’
SMF ¶¶ 37-38. Plaintiff believes that she was qualified for and performed well in this role. Pl.’s
SMF ¶ 38. Plaintiff received consistently positive feedback on her performance from both GE and
GID employees. Id. Garcia contends that he had decided by June 2012 that Plaintiff could not stay
on the TOC Project indefinitely, and that he would have to terminate her employment by October
unless a new project was found for her. Defs.’ SMF ¶ 39. Plaintiff states that Garcia informed her
that everyone was happy with her work, and that in June 2012 Garcia offered her a raise in response
to positive reviews of Plaintiff’s performance. Pl.’s SMF ¶¶ 39, 80, 81. At no time between May
and October 2012 was Plaintiff informed or notified of any change in her employment status, or of
an intention to terminate her employment in October if another project was not found for her. Id. ¶¶
32, 79.
B. The October 25 Incident
On Thursday, October 25, 2012, Plaintiff and two other colleagues were talking near the
work area of Sarah Hill (“Hill”), a GE employee. Defs.’ SMF ¶ 40; Pl.’s SMF ¶ 40. Plaintiff made
a comment about how people in general gain weight from sitting at their desks all day. Defs.’ SMF
¶ 41; Pl.’s SMF ¶ 41. Hill overheard this comment and joined the conversation. Defs.’ SMF ¶ 42.
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Plaintiff alleges that Hill began to berate her, saying “in this country we don’t talk like that,” and
that [Plaintiff’s] comment might be acceptable in Iran, but not in the United States. Pl.’s SMF ¶ 42.
Hill purportedly said that Plaintiff’s comment might be acceptable in Iran, but not the United States
and described Plaintiff as uncivilized. Id. Plaintiff was “taken aback” by Hill’s comments, and
questioned why her ancestry was relevant to the situation. Id. Plaintiff stated that she was an
American citizen, and that her husband and children were American. Defs.’ SMF ¶ 44; Pl.’s SMF ¶
44. Plaintiff perceived Hill’s comments as “blatantly discriminatory” and informed Hill that if
Plaintiff’s nationality bothered Hill, Plaintiff would resign. Pl.’s SMF ¶ 44. Plaintiff then
attempted to report the incident to Kathleen Bokan and Peter Nelli, two GE employees, but they
were not at their cubicles at the time. Defs.’ SMF ¶¶ 45-46; Pl.’s SMF ¶¶ 45-46. Plaintiff then
reported the incident to her GID supervisor, Tefft, who allowed her to go home early. Defs.’ SMF
¶¶ 47-48; Pl.’s SMF ¶¶ 47-48.
Jose Garcia held a conference call with Tefft and Tomas Zalewski (“Zalewski”) the day after
the incident to learn more about what happened. Garcia Aff. ¶ 38. On Plaintiff’s next scheduled
work day, Monday, October 29, Tefft and Zalewski spoke to her regarding the October 25 incident
at Garcia’s request. Defs.’ SMF ¶¶ 49-50; Garcia Aff. ¶ 39. Plaintiff told Tefft and Zalewski that
she believed Hill’s conduct was discriminatory. Pl.’s SMF ¶ 50. Tefft told Plaintiff that he had
spoken with Garcia and they agreed that Plaintiff would not be required to have unwanted contact
with Hill in the future. Id. Although Plaintiff thought this response was insufficient, she informed
Tefft that she was willing to continue working in her current position. Id.
Plaintiff also reported the incident to Jared York (“York”), her supervisor at GE. Defs.’
SMF ¶¶ 52-53. On October 30, 2012, York recounted his understanding of the incident in an email
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to GID management, stating that he was unhappy with how Plaintiff reacted to the incident. Defs.’
SMF ¶¶ 54-55; Pl.’s SMF ¶ 54. York requested that GID address the incident with Plaintiff, but did
not specifically request that they terminate Plaintiff’s employment. Defs.’ SMF ¶¶ 55-56; Pl.’s SMF
¶¶ 55-56. Specifically, York’s email stated that he felt that Plaintiff showed “completely
unprofessional behavior” and that “[he] need[s] people who can work and communicate effectively
and professionally.” Pl.’s SMF ¶ 55. York further stated “I’m looking to you to make sure that
[Plaintiff] understands that her behavior was unacceptable and will not be tolerated,” and “I’ll look
forward to hearing your updates on next steps with [Plaintiff].” Id. GID management then
contacted York by telephone and informed him that they had already decided to terminate Plaintiff’s
employment, prior to the October 25 incident. Defs.’ SMF ¶ 58. At Garcia’s deposition, however,
he testified that when he spoke to York on October 30, he did not tell York that a decision to
terminate Plaintiff’s employment had previously been made, or even that he intended to terminate
Plaintiff’s employment. Pl.’s SMF ¶ 58; Dkt. No. 72-2 (“Garcia Depostion”) at 82:14-83:5. York
testified that when he spoke to Garcia, Garcia told him that GID had decided to terminate Plaintiff’s
employment, but they did not tell him why or when the decision was made. Pl.’s SMF ¶ 58; Dkt.
No. 72-3 (“York Deposition”) at 56:24-57:08.
C. Termination of Plaintiff’s Employment With GID
On October 30, Plaintiff called in sick. Defs.’ SMF ¶ 51; Pl.’s SMF ¶ 51. When Plaintiff
returned to work on October 31, 2012, she received an email from Garcia notifying that her
employment was terminated, effective immediately. Defs.’ SMF ¶¶ 60-61; Pl.’s SMF ¶¶ 34, 60-61.
In the termination letter, Garcia explained that the decision to terminate Plaintiff’s employment was
made in recent days and was due to the difficult economic downturn. Pl.’s SMF ¶ 34. The letter
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stated that the termination “should not be taken as any reflection on you personally or your
performance, which by the way, was outstanding.” Id. ¶ 39. After she received notice of her
termination, Plaintiff went to York’s office, where she informed him that she believed that her
termination was retaliation for her complaint against Hill. Defs.’ SMF ¶ 64; Pl.’s SMF ¶ 64. York
allegedly told Plaintiff that he did not know anything about the decision to terminate her, and that he
ultimately did not care whether Plaintiff had been discriminated against or not, because Plaintiff was
not a GE employee. Pl.’s SMF ¶ 64. York denies that he discriminated against Plaintiff. Defs.’
SMF ¶ 65.
On November 7, 2012, Garcia met with Plaintiff and informed her that GID had terminated
her employment for budgetary reasons. Id. ¶ 71. At this meeting, Plaintiff alleges that Garcia
informed her that the decision to terminate her employment was made unilaterally by “higher ups”
at GE, because GE chose to eliminate her position. Pl.’s SMF ¶¶ 34, 90. Plaintiff alleges that
Garcia admitted at this meeting that he was not aware of any prior decision to terminate Plaintiff’s
employment. Id. ¶ 39. However, in his affidavit, Garcia states that the “decision to terminate
Hexemer was made solely by me, on behalf of GID. GE was not involved in any way in this
decision.” Garcia Aff. ¶ 3. Garcia further contends that “[c]ertainly by October 30, and long before
the October 25 incident, it was clear that GRUPO would not be getting a new project by the end of
October, and that we would have to terminate Plaintiff’s employment at the end of the month. We
simply could not afford to keep paying Hexemer when she was unable to perform the duties of her
current position.” Id. ¶ 41.
GID contends that it has an established practice of giving employees notice of their termination
the day the termination takes effect. Defs.’ SMF ¶ 63. According to Plaintiff, Garcia told her that
6

GE normally provides him with two months notice of decisions by GE to terminate a contract
employee, but they did not do so in this instance. Pl.’s SMF ¶¶ 63, 92. Garcia informed Plaintiff
that he would have provided her with such notice had GE given him the opportunity to do so. Id. ¶
63. According to Plaintiff, Garcia told Plaintiff that he was “happy” with her performance, and even
suggested that GID would be willing to hire Plaintiff in the future. Id. ¶ 93.
On December 10, 2012, Plaintiff commenced this action, alleging that the termination of her
employment constituted discriminatory treatment, harassment, and unlawful retaliation in violation
of (1) Section 1981 of the Civil Rights Act of 1866 (“§ 1981”), 42 U.S.C. § 1981; and (2) the New
York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law §§ 290, et seq. See Compl. On
September 11, 2013, the Court granted Defendants’ Motion to dismiss Plaintiff’s claims for
discrimination and hostile work environment in violation of § 1981, as well as her claims for
discrimination and hostile work environment in violation of the NYSHRL. See Dkt. No. 16
(“September Order”). The Court denied Defendants’ Motion to the extent that they sought
dismissal of Plaintiff’s claims for retaliation in violation of § 1981 and the NYSHRL. Id. After
receiving a right-to-sue letter from the Equal Employment Opportunity Commission, Plaintiff filed
an Amended Complaint on March 31, 2014, adding a claim for unlawful retaliation in violation of
Title VII. See Dkt. No. 40 (“Amended Complaint”).
On December 12, 2014, Defendants filed the instant Motion for summary judgment on all
three causes of action. Mot. Plaintiff filed a Response, Dkt. Nos. 73-1 (“Response”), and
Defendants filed a Reply, Dkt. No. 77 (“Reply”). Defendants move for summary judgment on the
following grounds: (1) Plaintiff has failed to show that GE is Plaintiff’s joint or individual employer
and thus all claims against GE should be dismissed; (2) GID is not a qualified employer under Title

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VII; (3) the decision to terminate Plaintiff’s employment pre-dated her protected activity; (3)
Defendants have offered a valid, non-retaliatory reason for Plaintiff’s termination; (4) Plaintiff has
failed to show that Garcia should be held individually liable. See generally, Mot.
III.

LEGAL STANDARD
Federal Rule of Civil Procedure 56 instructs a court to grant summary judgment if “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. Although “[f]actual disputes that are irrelevant or unnecessary” will not
preclude summary judgment, “summary judgment will not lie if . . . 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 (1986); see also Taggert v. Time, Inc., 924 F.2d 43, 46 (2d Cir. 1991).
The party seeking summary judgment bears the burden of informing the court of the basis
for the motion and of identifying those portions of the record that the moving party claims will
demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). If the moving party shows that there is no genuine dispute as to any material fact, the
burden shifts to the nonmoving party to demonstrate “the existence of an element essential to that
party’s case, and on which that party will bear the burden of proof at trial.” Id. This requires the
nonmoving party to do “more than simply show that there is some metaphysical doubt as to the
material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
At the same time, a court must resolve all ambiguities and draw all reasonable inferences in
favor of the nonmoving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150
(2000); Nora Beverages, Inc. v. Perrier Grp. of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998). A
court’s duty in ruling on a motion for summary judgment is “carefully limited” to finding genuine

8

disputes of fact, “not to deciding them.” Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224
(2d Cir. 1994).
In retaliation cases, courts should be especially cautious before granting summary judgment
“where, more often than not, it is the employer’s intent that is in question.” Lawrence v. Thomson
Learning, Inc., No. 05-CV-329, 2007 WL 1593270, at *14 (N.D.N.Y. June 1, 2007) (citing Gallo,
22 F.3d at 1224); see also Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir. 1999) (instructing district
courts to “be especially cautious in deciding whether to grant this drastic provisional remedy in a
discrimination case, because the employer’s intent is often at issue and careful scrutiny may reveal
circumstantial evidence supporting an inference of discrimination”). Nonetheless, “summary
judgment remains available for the dismissal of [retaliation] claims in cases lacking genuine issues
of material fact.” McLee v. Chrysler Corp., 109 F.3d 130, 135 (2d Cir. 1997).
IV.

CLAIMS AGAINST GE
Defendants move for summary judgment on the ground that Plaintiff has failed to show that

GE qualifies as either Plaintiff’s joint or single employer. Mem. at 15-21. Plaintiff concedes this
argument and does not oppose that aspect of Defendants’ Motion. Resp. at 1. Even where the nonmoving party fails to oppose a motion for summary judgment, the moving party is only entitled to
summary judgment if that party has met its burden of showing that there is no genuine issue of
material fact. See FED. R. CIV. P. 56(e); Vt. Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d
241, 244 (2d Cir. 2004). In order to prevail against GE for unlawful retaliation, Plaintiff must show
that GE was either her actual employer, or her joint employer. See Arculeo v. On-Site Sales &
Marketing, LLC, 425 F.3d 193, 198 (2d Cir. 2005) (recognizing that separate legal entities that
handle certain aspects of the employer-employee relationship jointly may recognized as joint

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employers). For claims brought pursuant to § 1981, whether an entity constitutes a joint employer
hinges on the control exercised by the putative joint-employer over the plaintiff’s work. See Sept.
Order at 5 (citing Barbosa v. Continuum Health Partners, Inc., 716 F. Supp. 2d 210, 217 (S.D.N.Y.
2010). Here, there is substantial evidence in the record that GID, and not GE, controlled Plaintiff’s
employment, and Plaintiff has failed identify any issues of material fact regarding whether GE was
Plaintiff’s joint or single employer. See Resp. at 1 n.1. Defendants are therefore entitled to
summary judgment with respect to Plaintiff’s claims against GE.
V.

TITLE VII
Defendants also move for summary judgment on Plaintiff’s claims arising under Title VII,

on the basis that GID alone is not a qualified employer. Mem. at 23-24. Title VII defines
“employer” as a person engaged in an industry affecting commerce who has fifteen or more
employees for each working day in each of twenty or more calendar weeks in the current or
preceding year.” 42 U.S.C. § 2000e(b). GID contends, and Plaintiff concedes, that GID had fewer
than fifteen employees on its payroll during any given week. See Mem. at 30; Resp. at 1; Garcia
Aff. ¶ 5. Therefore, Defendants’ Motion is granted to the extent that it seeks summary judgment on
Plaintiff’s Title VII claims.
VI.

RETALIATION
A. NYSHRL and § 1981
1. Legal Standard
The NYSHRL prohibits an employer from discriminating or retaliating against an employee

because the employee opposed discriminatory employment practices. See N.Y. EXEC. LAW
296(1)(e), (3-a)(c). Similarly, 42 U.S.C. § 1981 provides a right of action where an employee has

10

§

been retaliated against because he or she opposed discriminatory practices. CBOS W., Inc. v.
Humphries, 553 U.S. 442, 457 (2008).
Retaliation claims under the NYSHRL and § 1981 are analyzed under the familiar burdenshifting framework established in McDonnell Douglas Corp. v. Greene, 411 U.S. 792 (1973). See
Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010) (analyzing all of plaintiff’s retaliation claims
pursuant to Title VII principles); Patterson v. Cnty. of Oneida, N.Y., 375 F.3d 206, 225 (2d Cir.
2004) (“Most of the core substantive standards that apply to claims of discriminatory conduct in
violation of Title VII are also applicable to claims of discrimination in violation of § 1981 or the
Equal Protection Clause.”); Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1177 (2d Cir. 1996)
(considering plaintiff’s state law claims together with her Title VII claims “because New York
courts rely on federal law when determining claims under the [NYSHRL]”).
Under this framework, a plaintiff must first make out a prima facie case by showing that:
(1) the employee engaged in protected activity; (2) the employer was aware of that activity; (3) the
employee suffered a materially adverse action; and (4) there was a causal connection between the
protected activity and that adverse action. See Rivera v. Rochester Genesee Reg’l Transp. Auth.,
743 F.3d 11, 24 (2d Cir. 2012). “A plaintiff’s burden of establishing a prima facie case is de
minimis.” Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 467 (2d Cir. 2001). If the plaintiff
meets this minimal burden, the burden shifts to the employer, who must offer a legitimate,
nonretaliatory reason for the adverse action. See Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir.
2003); see also Meiri v. Dacon, 759 F.2d 989, 996-97 (2d Cir. 1985). If the employer succeeds at
the second stage, then the presumption of retaliation dissipates, and the plaintiff must show that, but
for the protected activity, she would not have been terminated. See Univ. of Tex. Sw. Med. Ctr. v.

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Nassar, 133 S.Ct. 2517, 2534 (2013). A plaintiff alleging retaliation for complaining about a
discriminatory employment practice 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. at 2526,
2533.1 “However, ‘but-for’ causation does not require proof that retaliation was the only cause of
the employer’s action, but only that the adverse action would not have occurred in the absence of the
retaliatory motive.” Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 846 (2d Cir. 2013).
To prevail at the summary judgment stage in a retaliation case, a defendant must show that
the plaintiff failed to make out a prima facie case of retaliation, or that the defendant has offered
legitimate, nonretaliatory reasons for the challenged actions, and there are no triable issue of fact as
to whether the defendant’s explanations were pretextual. Vosburgh v. Am. Nat. Red. Cross, No. 08CV-0653, 2014 WL 4826688, at *8 (N.D.N.Y. Sept. 29, 2014) (Kahn, J.) (citing Delrio v. City of
N.Y., 938 N.Y.S.2d 149, 151 (App. Div. 2012)).
2. Discussion
a. Prima Facie Case
The only element of the prima facie case at issue is whether Plaintiff can demonstrate a
causal connection between reporting the allegedly discriminatory conduct and her subsequent

1

It is unsettled whether the but-for causation standard for Title VII claims articulated in
Nassar applies to claims brought under the NYSHRL and § 1981. See Dall v. St. Catherine of Siene
Med. Ctr., 966 F. Supp. 2d 167, 191 n.12 (E.D.N.Y. 2013) (“New York State courts have yet to
address the impact of the Supreme Court’s recent holding in Nassar on the NYSHRL, nor has the
Second Circuit provided the district courts of this Circuit with guidance as to this issue.”); Quarless
v. Brooklyn Botanic Garden Corp., No. 11-cv-05684, 2014 WL 2767085, at *5 (E.D.N.Y. June 18,
2014) (stating that it is unclear whether §1981 claims post-Nassar are analyzed under the but-for
standard or the previous motivating factor test). However, since the Court finds that Defendants are
not entitled to summary judgment even under the more exacting but-for test, the Court need not
determine whether a more lenient causation standard applies.
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termination. For the purposes of stating a prima facie case, a plaintiff may demonstrate causation
by, inter alia, “showing that the protected activity was followed closely by discriminatory treatment,
or through other circumstantial evidence.” Hicks, 593 F.3d at 170 (quotation marks omitted).
“[T]he but-for causation standard does not alter the plaintiff’s ability to demonstrate causation at the
prima facie stage on summary judgment or at trial indirectly through temporal proximity.” Zann
Kwan, 737 F.3d at 845.
While there is no bright line defining when the temporal proximity between protected
activity and an adverse employment action is sufficient to give rise to an inference of causation, in
general, a temporal gap of less than two months is sufficient to give rise to an inference of
causation. See, e.g., Mazurkiewicz v. N.Y.C. Health & Hosp. Corp., No. 09 Civ. 5962, 2010 WL
3958852, at *5 (S.D.N.Y. Sept. 16, 2010) (finding inference of causation where less than two
months elapsed between protected activity and adverse action); Zann Kwan, 737 F.3d at 845
(finding same for period of three weeks); Reed, 95 F.3d at 1178 (finding same for time period of
twelve days). In the present case, Plaintiff was terminated six days after her first protected activity
(when she first reported Hill’s comments to her GE supervisor), and two days after her second
(when she told Tefft and Zalewski that separating her from Hill was an inadequate remedy). As the
Court noted in its September 11, 2013 Order denying Defendants’ Motion to dismiss Plaintiff’s
retaliation claims, this temporal gap of less than a week is “more than sufficient to create an
inference of causation.” Sept. Order at 14.
Defendants counter that Plaintiff cannot show a causal connection between her protected
activity and her termination because GID had made plans to terminate Plaintiff’s employment in
May, 2012, five months before her protected activity took place. Mem. at 17. In support of this

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theory, Defendants rely on the May 2012 email from Jose Garcia to Guillermo Garcia. Id.
Defendants argue that this email shows that GID made the decision to terminate Plaintiff’s
employment in May, five months prior to her protected activity. Id.
“[T]o establish that an adverse employment action was caused by an employee’s protected
activity, the employer’s decision to act adversely to the employee must postdate the protected
activity.” Trainor v. HEI Hospitality, LLC, 699 F.3d 19, 27 (1st Cir. 2012). Accordingly, an
employer need not suspend previously planned personnel decisions upon discovering that an
employee has engaged in a protected activity. See Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268,
272 (2001). In this case, however, although it is possible for a rational factfinder to find that
Plaintiff’s termination at the end of October was part of a plan by GID that predated Plaintiff’s
protected activity, a factfinder could also reasonably conclude that Plaintiff’s termination within a
week of her protected activity was motivated by retaliatory animus. See, e.g., Trainor, 699 F.3d at
27 (denying summary judgment on retaliation claim where there was genuine issue of fact as to
whether adverse employment action resulted from plan that pre-dated protected activity, or resulted
from retaliatory motive). The latter interpretation is supported by the fact that any plan to eliminate
Plaintiff’s position was only discussed in hypothetical terms in the May 2012 email, and was not
acted upon until immediately after Plaintiff complained about discrimination. Further, Plaintiff was
never informed of this plan, and Defendants offer no evidence, other than the May email, to suggest
that Plaintiff’s termination was in fact motivated by this earlier, budget-driven decision. A court’s
duty in reviewing a motion for summary judgment is limited to identifying genuine disputes of fact,
“not deciding them.” Gallo, 22 F.3d at 1224. Accordingly, the record adequately demonstrates
causation for purposes of Plaintiff’s prima facie case, and there are genuine issues of fact that

14

preclude summary judgment.
b. Legitimate Non-Discriminatory Reason
Having found that Plaintiff has set forth a prima facie case of retaliation, the burden then
shifts to Defendant to provide a legitimate, non-discriminatory reason for Plaintiff’s termination.
McDonnell Douglas, 411 U.S. at 802. The burden of offering a legitimate non-discriminatory
reason is low. Id. (stating that a defendant is only required to articulate—not to prove—a nondiscriminatory reason for its employment decision); see also Tarshis v. Riese Org., 211 F.3d 30, 36
(2d Cir. 2000) (stating that any reason is sufficient and the defendant is not required to persuade the
court that the proffered reason was the actual reason for its decision) abrogated on other grounds by
Swierkewicz v. Sorema N.A., 534 U.S. 506 (2002).
Defendants argue that the fact that the purported decision to terminate Plaintiff’s
employment in October if another project was not secured for her predated Plaintiff’s protected
activity, coupled with what Garcia described as Plaintiff’s inability to perform successfully on the
TOX project, constitutes a legitimate, nonretaliatory reason for her termination. Mem. at 13-14.
This is sufficient to satisfy the second prong of the McDonnell-Douglas analysis. See Tarshis, 211
F.3d at 36.
c. Pretext
Once the defendant has articulated a non-retaliatory reason for an employment action, the
presumption of retaliation that arises from the prima facie case is rebutted. Weinstock v. Columbia
Univ., 224 F.3d 33, 42 (2d Cir. 2000). The plaintiff then bears the burden of showing that the nonretaliatory reason is merely a pretext for retaliation. Id. Recently, the Supreme Court clarified that a
plaintiff alleging retaliation must show that retaliation was a “but-for” cause of the adverse action,

15

rather than simply a “substantial” or “motivating” factor in the employer’s decision. Nassar, 133 S.
Ct. at 2526, 2533. To establish “but-for” causation, the plaintiff is not required to show that
retaliation was the only cause of the employer’s action; rather, the plaintiff must show that the
adverse action would not have occurred in the absence of the retaliatory motive. Zann Kwan, 737
F.3d at 846.
“A plaintiff may prove that retaliation was a but-for cause of an adverse employment action
by demonstrating weakness, implausibilities, inconsistencies, or contradictions in the employer’s
proffered legitimate, nonretaliatory reasons for its action.” Id. Such discrepancies provide evidence
from which a reasonable juror could conclude that the explanations are a pretext for retaliation. See
id. A plaintiff “may rely on evidence comprising her prima facie case, including temporal
proximity, together with other evidence such as inconsistent employer explanations, to defeat
summary judgment at that stage.” Id. at 847. An employer’s reason for an adverse action cannot be
proven to be a pretext for retaliation unless it is shown to be false and that retaliation was the real
reason, see Quaratino v. Tiffany & Co., 71 F.3d 58, 64 (2d Cir. 1995), but a finding of falsity may,
in appropriate circumstances, allow the factfinder to infer the ultimate fact of intentional retaliation,
see Reeves, 530 U.S. at 147; St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993); Cross v.
N.Y.C. Transit Auth., 417 F.3d 241, 250 (2d Cir. 2005).
The Court finds Defendants’ proffered explanation for terminating Plaintiff’s employment
problematic for a number of reasons. Defendants contend that the decision to terminate Plaintiff’s
employment was made in May 2012, five months before her protected activity. Mem. at 13-14.
However, Defendants also offer alternative reasons and explanations for Plaintiff’s termination that
undermine the legitimacy of this explanation. The Court will address each of these inconsistencies

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in turn.
First, whether or not the May 2012 email between Jose and Guillermo Garcia constitutes a
final decision to terminate Plaintiff’s employment raises genuine issues of material fact. Defendants
claim that the May email is “dispositive,” and shows that GID made a final decision to terminate
Plaintiff’s employment five months before her protected activity. Id. at 7. However, the email
discusses Plaintiff’s potential termination in only hypothetical terms. See Garcia Aff., Ex. A. In the
email, Jose Garcia suggests placing Plaintiff on another project with the goal of securing additional
contracts for GID, and “[i]f nothing happens by October, then I will send Sohelia her letter of
termination.” Id. Defendants have put forth no additional evidence to corroborate that Plaintiff’s
termination on the last day of October was in fact motivated by the plan laid out in the May email.
In Cioffi v. Averill Park Cent. Sch. Dist., 444 F.3d 158, 163 (2d Cir. 2006), the court rejected a
similar argument by an employer who attempted to show that the adverse employment decision was
made prior to the plaintiff’s protected activity. Id. at 163. The Second Circuit held that reaching an
“informal consensus” to terminate the plaintiff’s employment at a closed door meeting was not an
adverse employment action; rather the action occurred on the date where there was an official
meeting, a formal vote, and a public outcome. Id.; see also Nagle v. Marron, 663 F.3d 100, 110 (2d
Cir. 2011) (“[A]n employer cannot insulate himself from liability at the summary judgment stage
simply by asserting that an adverse employment decision had in fact already been made, without
being memorialized or conveyed to anyone, before the employer learned of the protected conduct.”
Therefore, whether or not the May 2012 email is sufficient to establish that Plaintiff’s termination
predated her protected activity is therefore an issue of disputed fact.
Additionally, shifting or contradictory explanations by an employer suggest that a proffered

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explanation is pretextual. See EEOC v. Ethan Allen, 44 F.3d 116, 120 (2d Cir. 1994) (finding that
reasonable jurors could infer that employer’s shifting explanations, offered only after the plaintiff
complained of discrimination, were pretextual); see also Zann Kwan, 737 F.3d at 847 (finding that
employer’s inconsistent explanations, coupled with temporal proximity between protected activity
and termination, created a triable issue of fact regarding whether but-for causation was satisfied).
At the pretext stage, courts should consider “whether the putative non-discriminatory purpose was
stated only after the allegation of discrimination.” DeMarco v. Holy Cross High Sch., 4 F.3d 166,
171 (2d Cir. 1993). Such after-the-fact explanations are suggestive of pretext. Ethan Allen, 44 F.3d
at 120.
Here, Defendants have offered shifting and inconsistent explanations regarding the
circumstances of Plaintiff’s termination. In his affidavit, Garcia states that he made the decision to
terminate Plaintiff in May 2012 for “budgetary reasons.” Garcia Aff. ¶¶ 3-4; Dkt. No. 72-8, Ex. H.
However, when Garcia met with Plaintiff in November 2012 following her termination, Garcia told
Plaintiff that the decision was made unilaterally by GE and that he received no advanced notice of
the termination. Pl.’s SMF ¶¶ 90-94. Garcia assured Plaintiff that he would have given Plaintiff the
customary notice of termination he gives other employees had the decision not come from “higherups” at GE. Id. ¶ 92. Plaintiff’s termination letter stated that the decision was attributed to “the
difficult economic downturn we are going through” and that the termination “should not be taken as
any reflection on you personally or your performance, which by the way, was outstanding.” Dkt.
No. 72-8, Ex. H.
Defendants also argue that Plaintiff’s poor performance on the second project contributed to
her termination. Mem. at 13-14. In support of this argument, Garcia testified that Plaintiff

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misstated her qualifications. Def.’s SMF ¶¶ 37-38. This argument directly undermines Defendants’
previous argument, that the final decision to terminate Plaintiff’s employment was made in May.
Plaintiff’s evidence further contradicts these assertions. Plaintiff asserts that there were no
documented problems with her performance, that during her tenure she received only positive
reviews, and that Garcia himself offered Plaintiff a raise in June 2012—after she began work on the
second project—and cited Plaintiff’s excellent performance as the reason for the raise. Pl.’s SMF ¶¶
39, 80-81. Plaintiff’s history of positive performance evaluations prevents the Court from finding as
a matter of law that Plaintiff’s termination was in no way motivated by her protected activity. See
Nagle, 663 F.3d at 112 (holding that plaintiff’s history of positive performance undermined
defendant’s argument that it had a legitimate, non-discriminatory reason for terminating her
employment).
Plaintiff has also set forth evidence that GID may have been motivated to terminate
Plaintiff’s employment following her protected activity in order to preserve its existing business
relationship with GE. Pl.’s SMF ¶¶ 54-59. Immediately after receiving an email on October 30
from GE manager Jared York discussing his displeasure with Plaintiff’s reaction to the October 25
incident and stating that Plaintiff’s behavior “will not be tolerated,” the Garcia brothers informed
York that they intended to terminate Plaintiff’s employment. Id. ¶¶ 57-59. Plaintiff was terminated
the next day, on October 31.
The primary case that Defendants rely on in support of their Motion, LaLanne v. Begin
Managed Programs, No. 04 Civ. 9076, 2007 WL 2154190, at *5 (S.D.N.Y. July 24, 2007), is
inapposite. In LaLanne, the defendant offered proof that the initial termination of plaintiff’s
employment was the result of a seventy percent cut in the budget that required the elimination of

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two of the three coordinator positions for which the plaintiff was qualified. Id. at *2. The plaintiff,
as the most junior coordinator, was slated for termination. Id. Critically, the defendant informed
the plaintiff of the company’s decision to eliminate his position soon after it was made. Id. Before
the termination took effect, the defendant was able to secure alternative sources of funding and
employed the plaintiff for an additional six months. Id. The plaintiff was eventually terminated,
along with all of the defendant’s other employees as the result of a change in the agreement between
defendant and the company they contracted with. Id. at *3. Moreover, there was a three month gap
between the plaintiff’s alleged protected activity and his termination. Id. at *2. Unlike in LaLanne,
Defendants have set forth no evidence other than the May email to support their theory that
Plaintiff’s termination was budget-driven. While the Court acknowledges that budgetary
considerations and other business-related decisions are non-retaliatory, in the present case, there are
genuine issue of material fact surrounding the actual motivation behind Plaintiff’s termination,
precluding summary judgment. Furthermore, Defendants’ conflicting explanations as to how and
why the decision to terminate Plaintiff’s employment was made, combined with the temporal
proximity between Plaintiff’s protected activity and her termination, support an inference that
Defendants’ proffered reasons are pretext for retaliation. See Hicks, 509 U.S. at 511 (“[T]he
factfinder’s disbelief of the reasons put forward by the defendant (particularly if disbelief is
accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case,
suffice to show intentional discrimination.”). Accordingly, Plaintiff has met her burden at the
pretext stage, and Defendants are not entitled to summary judgment on Plaintiff’s retaliation claims
under § 1981 and the NYSHRL.
VII.

INDIVIDUAL CLAIMS AGAINST GARCIA

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Defendants argue that Plaintiff’s individual claims against Garcia should be dismissed for
the following reasons: (1) the decision to terminate Plaintiff’s employment was made for budgetary
reasons and occurred months before the protected activity; and (2) Plaintiff did not engage in a
protected activity with respect to Garcia because she did not directly report the incident to Garcia
prior to her termination. Mem. at 30.
Under § 1981, individual defendants may be liable if the plaintiff can “demonstrate some
affirmative link to causally connect the actor with the discriminatory action.” Whisbee v. Garzarelli
Food Specialities, Inc., 223 F.3d 62, 74 (2d Cir. 2000). Stated another way, individual liability
under § 1981 requires the actor’s personal involvement. Patterson, 375 F.3d at 229. Personal
involvement “includes not only direct participation in the alleged violation but also gross negligence
in the supervision [of] subordinates who committed the wrongful acts and failure to take action
upon receiving information that constitutional violations are occurring.” Id.
Here, Plaintiff alleges that Garcia was aware of, and acknowledged, the discriminatory
nature of Hill’s comments to Plaintiff, and failed to provide an appropriate remedy. Moreover,
Plaintiff has set forth sufficient evidence to suggest that Garcia himself made the decision to
terminate Plaintiff’s employment immediately following her protected activity. This is sufficient to
survive Defendants’ Motion for summary judgment regarding Plaintiff’s individual claims against
Garcia. See Gad-Tadros v. Bessemer Venture Partners, 326 F. Supp. 2d 417, 425 (E.D.N.Y. 2004)
(finding supervisor’s failure to remedy discriminatory behavior of other employees, coupled with
plaintiff’s constructive discharge immediately following protected activity was sufficient to support
individual liability under § 1981).
Defendants reassert their argument that Plaintiff’s termination predated her protected activity

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with respect to Plaintiff’s claims against Garcia. For the reasons discussed supra, the Court finds
that there are genuine issues of material fact regarding the motivation behind Plaintiff’s termination,
precluding summary judgment.
Further, the Court finds Defendants’ argument that Plaintiff did not engage in a protected
activity with respect to Garcia because Plaintiff did not report the incident to Garcia himself without
merit. To satisfy the “knowledge” element of a retaliation claim, a plaintiff is not required to report
a discriminatory incident directly to the employer. See Weber v. City of N.Y., 973 F. Supp. 2d 227,
267 (E.D.N.Y. 2013). Rather, the knowledge element is satisfied where the entity that carried out
the adverse employment action had notice of the employee’s protected activity. Papelino v. Albany
Coll. of Pharmacy of Union Univ., 633 F.3d 81, 92 (2d Cir. 2011) (“Even if the agents who carried
out the adverse action did not know about the plantiff’s protected activity, the ‘knowledge’
requirement is met if the legal entity was on notice.”). Here, it is undisputed that Garcia was aware
of Plaintiff’s protected activity before he sent her letter of termination. Therefore, the knowledge
element of Plaintiff’s retaliation claim is satisfied.
III.

CONCLUSION
Accordingly, it is hereby:
ORDERED, that Defendants’ Motion (Dkt. No. 65) for summary judgment is GRANTED

in part and DENIED in part; and it further
ORDERED, that Defendants’ Motion (Dkt. No. 65) for summary judgment is GRANTED
as to Plaintiff’s (1) Title VII Claim against all Defendants; and (2) § 1981 and NYSHRL retaliation
claims against Defendant General Electric. Defendants’ Motion (Dkt. No. 65) for summary
judgment is DENIED as to Plaintiff’s § 1981 and NYSHRL retaliation claims against Defendants

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GID and Jose Garcia; and it us further
ORDERED, that Defendant General Electric is DISMISSED from the case; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Memorandum-Decision and
Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.

DATED:

June 29, 2015
Albany, NY

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