Harder v. New York State, Office of Children & Family Services et al

Filing 52

MEMORANDUM-DECISION and ORDER. Defendants' motion for summary judgment, Dkt. No. 45 is GRANTED; and plaintiff's motion for summary judgment, Dkt. No. 33 is DENIED. The Clerk of the Court is directed to enter a judgment accordingly and close the file. Signed by Judge David N. Hurd on 8/3/2015. (lah)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
----------------------------------HARRY A. HARDER,
Plaintiff,
-v-

1:13-CV-565

NEW YORK STATE, OFFICE OF
CHILDREN & FAMILY SERVICES and
OTIS HILL,
Defendants.
----------------------------------APPEARANCES:

OF COUNSEL:

HARRY A. HARDER
Plaintiff, Pro Se
P.O. Box 1133
Schenectady, NY 12301
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Attorneys for Defendants
The Capitol
Albany, NY 12224

DAVID FRUCHTER, ESQ.
Ass't Attorney General

DAVID N. HURD
United States District Judge
MEMORANDUM–DECISION and ORDER
I. INTRODUCTION
Plaintiff Harry A. Harder ("Harder" or "plaintiff"), proceeding pro se, filed this action
pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII") against his former employer,
defendant New York State Office of Children & Family Services ("OCFS") and his former
co-worker, Otis Hill ("Hill").

The parties completed discovery and have cross-moved for summary judgment
pursuant to Federal Rule of Civil Procedure ("Rule") 56. Both motions have been fully
briefed and will be considered on the basis of the submissions without oral argument.
II. BACKGROUND1
"OCFS is a New York State agency that provides services for children, families, and
other vulnerable populations." Chinnery v. N.Y.S. Office of Children & Family Servs., 2014
WL 1651950, at *1 (S.D.N.Y. Apr. 25, 2014) (Report & Recommendation), adopted by 2015
WL 1029601 (S.D.N.Y. Mar. 10, 2015).
On February 3, 2011, OCFS hired Harder as a Youth Division Aide-IV ("YDA"). Defs.'
Statement of Material Facts, ECF No. 45-14, ¶¶ 1-2 ("Rule 7.1 Statement"). YDAs are
responsible for supervising violent juvenile felony offenders housed in secure facilities around
New York State. See Kaflowitz Decl., ECF No. 45-8, ¶ 4. Among other things, YDAs are
expected to establish positive relationships with the youths assigned to their care and, when
necessary, restrain individuals who become violent. Id. ¶ 8.
New OCFS employees, such as Harder, must attend a six-week basic training
program at Parker Training Academy ("Parker Academy"). Kaflowitz Decl. ¶¶ 3, 9; Rule 7.1
Statement ¶ 3. Parker Academy provides dormitory-style housing facilities and new trainees

1

Although Harder was the first to move for summary judgment, he failed to submit the Statement of
Material Facts required by this District's Local Rules. See N.D.N.Y.L.R. 7.1(a)(3). More importantly,
however, plaintiff also failed to respond to the Rule 7.1 Statement filed by defendants in support of their own
motion, despite being properly warned of the consequences attendant with such a failure. See Defs.' Notice
of Motion, ECF No. 45 (noting consequences as well as attaching this District's form notification of
same). These procedural concerns aside, "[c]ourts have broad discretion in applying their local rules," Erie
Painting & Maint., Inc. v. Ill. Union Ins. Co., 876 F. Supp. 2d 222, 224 (W.D.N.Y. 2012), and every effort has
been made to identify possible factual disputes given the procedural posture and plaintiff's pro se status.
-2-

are apparently expected to share rooms during this six-week period. See Rule 7.1
Statement ¶ 6.
On February 13, 2011, Harder arrived at Parker Academy where he met Hill, a fellow
YDA trainee who had been assigned as his roommate for the duration of the training. Rule
7.1 Statement ¶¶ 4-6; Kaflowitz Decl. ¶ 9. Unfortunately, this roommate relationship quickly
soured. See Fruchter Decl., Ex. A, ECF No. 45-2, 32-35 ("Harder Dep."). According to
plaintiff, Hill directed a continuing series of derogatory, insulting, and sometimes sexually
explicit comments toward him on a daily basis. Id.
For instance, Harder claims he and Hill were playing cards with a group of other
trainees in a lounge area when Hill used the words "papaya" and "sweet like lemonade or
lemon . . . . [i]n connection to the opponents at the table; meaning myself and . . . another
gentleman that were playing." Harder Dep. at 60-61. According to plaintiff, comments such
as these—made both in his presence and outside his presence to others at Parker
Academy—created the decidedly false impression that plaintiff was homosexual.2 Id. at 41;
81 ("Just for the record, I'm not gay. And no matter how many words you used, it's never
going to happen.").
On February 28, 2011, Harder asserts Hill made an unwanted sexual advance toward
him during the evening. Harder Dep. at 42-43. According to plaintiff, he was lying in bed in
his dormitory room when Hill, who was intoxicated at the time, entered the room and

2

Although Harder claims Hill directed a litany of these derogatory comments toward him, plaintiff
admitted in his deposition that only a few of these words were ever actually used in his presence. Harder
Dep. at 35-39, 86, 93.
-3-

whispered that "I have a pink towel, too." Id. at 42. 3 As a result of this and other incidents,
plaintiff eventually complained to the administrative staff at Parker Academy. Id. at 69.
On March 2, 2011, the same day that Harder complained to administration about Hill,
Alan Kaflowitz, Director of Parker Academy, held a meeting with Harder and Hill to address
plaintiff's complaint. Rule 7.1 Statement ¶ 7; Harder Dep. at 69-70. Norman Tillery, a
representative of Parker Academy's Human Resources staff, was also present for this
meeting. Rule 7.1 Statement ¶ 7.
Both Tillery and Kaflowitz instructed Hill to refrain from any further comments that
Harder might perceive to be derogatory. Kaflowitz Decl. ¶ 11. Hill apologized to plaintiff at
this meeting. Id. Plaintiff and Hill were then assigned to different rooms for the remainder of
their time at Parker Academy. Rule 7.1 Statement ¶ 8.
On March 25, 2011, both Harder and Hill graduated from Parker Academy and were
assigned to work at Brookwood Secure Center ("Brookwood"), an OCFS-run residential
center that provides housing, education, counseling, recreation, health, and dining services
for violent youthful offenders. Rule 7.1 Statement ¶ 10; Kaflowitz Decl. ¶ 4; Harder Dep. at
73. According to plaintiff, Hill 's unwanted comments continued and eventually caused staff
and residents at Brookwood to become "uncomfortable" working with plaintiff. Harder Dep.
at 73, 76, 98. Plaintiff further believes that these comments contributed to at least two violent
encounters with facility residents. Id.
On October 1, 2011, Harder was on duty in Brookwood's lounge area when two
residents began fighting. Harder Dep. at 99. Plaintiff and his fellow YDAs were required to
3

Hill indicates that this comment "was a reference to the fact that when towels at [Parker Academy]
which were originally white were laundered with items of other colors, the colors from some of the other items
would run, and some of the formerly white towels would turn pink." Hill Decl., ECF No. 45-10, ¶ 6.
-4-

restrain the residents until order could be restored in the f acility. Id. at 100. During the fight,
plaintiff sustained an injury to his hand and received immediate treatment at a nearby
hospital. Id. at 101-02. According to plaintiff, a supervisory official at Brookwood named
John Rockafellow then denied his request to return to work in a "light duty" capacity following
two days of medical leave. Id. at 102. Plaintiff "referred" this allegedly improper denial to a
worker's compensation administrative law judge, who eventually concluded plaintiff had been
improperly denied a light duty assignment.4 Id. at 103-04.
On October 26, 2011, Harder returned to unrestricted duty at Brookwood. See Rule
7.1 Statement ¶ 9. According to plaintiff, Rockafellow then assigned him to "hard" or "more
difficult" units at Brookwood, which consist of units where fights had recently broken out
between residents. See Harder Dep. at 103-06 ("Everybody knows, if you go to that unit,
there's a high chance that another fight may break out.").
On December 23, 2011, Harder was on duty in one of these "difficult units" when he
was assaulted by a resident after directing him to secure his room. Harder Dep. at 113-14.
According to plaintiff, he called for emergency assistance while struggling with this resident
but other staff failed to arrive for approximately ten minutes.5 Id. at 114-15. Plaintiff
sustained injuries to his shoulder, head, and leg and again received emergency medical
attention at a nearby hospital. Id. at 115-16. Plaintiff was placed on medical leave for
approximately two months before returning to active duty at Brookwood. Id. at 116.

4
Rockafellow contends he was not responsible for processing or deciding these "light duty"
requests. Rockafellow Decl., ECF No. 45-11, ¶ 11.
5

A security video submitted by defendants that purports to show this incident reveals that
approximately seven staff members responded within a few minutes of the altercation.
-5-

Finally, on February 29, 2012, Harder claims Hill mentioned to other staff at
Brookwood that he "wanted to take things to the parking lot." Harder Dep. at 84. According
to plaintiff, this comment was made outside his presence but he became aware of it
"because the whole facility was concerned about . . . a fight in the parking lot." Id.
Supervisory officials apparently caught wind of this problem and held a meeting the very next
day. Id. at 86. According to plaintiff, Hill again apologized for his comments and the parties
shook hands. Id.
On March 6, 2012, Harder resigned from OCFS after accepting a promotional position
at the Office of Parks, Recreation, and Historical Preservation ("Parks and Rec"), another
New York State agency. Harder Dep. at 119-20. According to plaintiff, he remained at Parks
and Rec for just over a year in a "provisional" capacity before agency cutbacks forced him
out of that position. Id. at 122-24. Because plaintif f was uncomfortable returning to
Brookwood, he then took a position with New York State's Department of Taxation and
Finance. Id. at 128.
On August 24, 2012, Harder filed a complaint with the New York State Division of
Human Rights ("DHR") against OCFS. Rule 7.1 Statement ¶ 13. Plaintiff's DHR complaint
alleged that he had been subjected to unlawful discrimination as a result of staff and
residents of Brookwood misperceiving him to be homosexual. Fruchter Decl., Ex. C, ECF
No. 45-4,1-3 ("DHR Complaint"). DHR investigated plaintiff's allegations and ultimately
dismissed plaintiff's DHR Complaint in a Determination and Order dated February 21,
2013. Fruchter Decl., Ex. E, ECF No. 45-6, 1-3.

-6-

On April 8, 2013, the Equal Opportunity Employment Commission ("EEOC") notified
Harder that it had adopted the DHR's findings regarding plaintiff's DHR Complaint and
notified plaintiff of his right to sue in federal court. Fruchter Decl., Ex. F, ECF No. 45-7, 1.
III. LEGAL STANDARD
The entry of summary judgment is warranted when "the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing FED.
R. CIV. P. 56(c)); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). A fact
is "material" for purposes of this inquiry if it "might affect the outcome of the suit under the
governing law." Anderson, 477 U.S. at 248; see also Jef freys v. City of N.Y., 426 F.3d 549,
553 (2d Cir. 2005). A material fact is genuinely in dispute "if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
When summary judgment is sought, the moving party bears the initial burden of
demonstrating that there is no genuine issue of material fact to be decided with respect to
any essential element of the claim. Id. at 250 n.4. The failure to meet this burden warrants
denial of the motion. See id. In the event this initial burden is met, the opposing party must
show, through affidavits or otherwise, that there is a material issue of fact for trial. Id. at 250.
When deciding a summary judgment motion, a court must resolve any ambiguities
and draw all inferences from the facts in a light most favorable to the non-moving party.
Jeffreys, 426 F.3d at 553. Summary judgment is inappropriate where "review of the record
reveals sufficient evidence for a rational trier of fact to find in the [non-movant's] favor."
Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002) (citations om itted); see also
-7-

Anderson, 477 U.S. at 250 (summary judgment is appropriate only when "there can be but
one reasonable conclusion as to the verdict").
"It is now beyond cavil that summary judgment may be appropriate even in the
fact-intensive context of discrimination cases," and that "the salutary purposes of summary
judgment—avoiding protracted, expensive and harassing trials—apply no less to
discrimination cases than to . . . other areas of litigation." Abdu-Brisson v. Delta Air Lines,
Inc., 239 F.3d 456, 466 (2d Cir. 2001) (internal quotation omitted).
Therefore, "an employment discrimination plaintiff faced with a properly supported
summary judgment motion must 'do more than simply show that there is some metaphysical
doubt as to the material facts.' . . . [He] must come forth with evidence sufficient to allow a
reasonable jury to find in [his] favor." Brown v. Henderson, 257 F.3d 246, 251 (2d Cir. 2001)
(quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).
A plaintiff's "[m]ere conclusory statements, conjecture or speculation" will not defeat
summary judgment. Gross v. Nat'l Broad. Co., Inc., 232 F.Supp.2d 58, 67 (S.D.N.Y .2002);
see also Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir.2008) ("Even in the discrimination
context . . . a plaintiff must provide more than conclusory allegations to resist a motion for
summary judgment."). Instead, a plaintiff must offer "concrete particulars." Bickerstaff v.
Vassar Coll., 196 F.3d 435, 451-52 (2d Cir.1999) (disregarding plaintiff's affidavit because it
lacked "concrete particulars"); Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.1985) ("To allow a
party to defeat a motion for summary judgment by offering purely conclusory allegations of
discrimination, absent any concrete particulars, would necessitate a trial in all Title VII
cases.").

-8-

With this framework in mind, it bears noting that "direct evidence of . . . [discriminatory]
intent will only rarely be available, so . . . 'affidavits and depositions must be carefully
scrutinized for circumstantial proof which, if believed, would show discrimination.'" Holcomb,
521 F.3d at 137 (internal citation omitted). However, this cautious attitude toward summary
judgment in the employment discrimination context cannot excuse a court's obligation to
"carefully distinguish between evidence that allows for a reasonable inference of
discrimination and evidence that gives rise to mere speculation and conjecture." Bickerstaff,
196 F.3d at 448.
Finally, "[i]t is well established that the submissions of a pro se litigant must be
construed liberally and interpreted to raise the strongest arguments that they
suggest." Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (citations
and internal quotation marks omitted). Application of this liberal standard is especially
important where, as here, a plaintiff alleges violations of his civil rights. See Sealed Plaintiff
v. Sealed Defendant # 1, 537 F.3d 185, 191 (2d Cir. 2008) (citing McEachin v. McGuinnis,
357 F.3d 197, 200 (2d Cir. 2004)).
IV. DISCUSSION
Harder brings Title VII discrimination and retaliation claims against Hill and OCFS,
alleging that Hill's continued comments to staff and residents at Parker Academy and
Brookwood created the false impression that plaintiff was homosexual. As a result, plaintiff
asserts he endured unfair treatment and was eventually forced to seek a transfer to Parks
and Rec.

-9-

A. Defendants' Motion for Summary Judgment6
As an initial matter, Harder cannot sustain any of his Title VII claims directed at Hill,
plaintiff's former co-worker and an individually named defendant in this action. Simply put,
Title VII does not provide for individual liability. See, e.g., Jackson v. Battaglia, 63 F. Supp.
3d 214, 219 (N.D.N.Y. 2014).
1. Title VII Discrimination
Harder's Title VII discrimination claims directed at OCFS fare no better. Plaintiff
asserts he was subjected to a course of discriminatory treatment at OCFS as a result of a
mis-perception regarding his sexual orientation that eventually forced him to seek a transfer
to Parks and Rec. Liberally construed, plaintiff appears to bring claims for disparate
treatment, a hostile work environment, and constructive discharge. See Harder Dep. at 85,
119.
A plaintiff seeking to press a Title VII discrimination claim based on disparate
treatment must first establish a so-called prima facie case; that is, he must demonstrate
that: (1) he is a member of a protected class; (2) who is qualified for the job he holds; (3)
who suffered an adverse employment action; (4) under circumstances that give rise to an
inference of discrimination. See Jackson, 63 F. Supp. 3d at 222.
But Harder cannot satisfy the first prong of this test, since Title VII "provides no
remedy for discrimination based upon sexual orientation." Swift v. Countrywide Home Loans,
Inc., 770 F. Supp. 2d 483, 488 (E.D.N.Y. 2011); see also McKibben v. Odd Fellows Health,
Inc., 2014 WL 3701022, at *3 (D. Conn. July 25, 2014) (concluding same where plaintiff

6

As noted above, Harder has also filed a motion for summary judgment. However, because
defendants' motion will be granted, plaintiff's cross-motion must be denied.
- 10 -

alleged that "rumors around work were that she was gay" and claimed she was terminated
"based on discriminatory animus against her based on her being perceived as gay").7
This same "protected class" limitation also applies to Title VII claims brought under
theories of a hostile work environment and constructive discharge. Bakhit v. Safety
Markings, Inc., 33 F. Supp. 3d 99, 107 (D. Conn. 2014) (apply ing limitation to constructive
discharge claim under Title VII); Dabney v. Christmas Tree Shops, 958 F. Supp. 2d 439, 457
(S.D.N.Y. 2013) (applying limitation to hostile work environment claim under Title
VII). Accordingly, defendants are entitled to judgment as a matter of law on these claims.
2. Title VII Retaliation
Harder's assertion of a Title VII retaliation claim bears closer scrutiny. Plaintiff alleges
that Rockafellow, his supervisor at Brookwood, assigned him to more difficult or dangerous
units after plaintiff complained to an administrative law judge about Rockafellow's failure to
assign him light duty in October 2011 because of his perceived homosexuality.
Title VII's anti-retaliation provision prohibits an employer from discriminating against
an employee who: "(1) has opposed an unlawful employment practice, or (2) has
'participated in any manner in an investigation under Title VII." Swift, 770 F. Supp. 2d at 489.
Like Title VII's anti-discrimination provision, a plaintiff seeking to state a claim for retaliation
must establish a prima facie case by demonstrating that he: (1) participated in protected
activity known to the defendant; (2) a disadvantageous employment action occurred;

7
To be sure, Title VII does permit a plaintiff to assert a claim for gender-based discrimination under
a protected class of "individuals who fail or refuse to comply with socially accepted gender roles," but a
careful review of the record in this case reveals that Harder is not attempting to press any such
theory. McKibben, 2014 WL 3701022 at *3 (citation omitted)

- 11 -

and (3) there was a causal connection between the protected activity and the employment
action about which the plaintiff complains. Id.
"Once a prima facie case of retaliation is established, the burden of production shifts
to the employer to demonstrate that a legitimate, nondiscriminatory reason existed for its
action." Croons v. N.Y.S. Office of Mental Health, 18 F. Supp. 3d 193, 208 (N.D.N.Y. 2014)
(quoting Summa v. Hofstra Univ., 708 F.3d 115, 125 (2d Cir. 2013)). "If the employer
demonstrates a legitimate, non-discriminatory reason, then [t]he burden shifts . . . back to the
plaintiff to establish, through either direct or circumstantial evidence, that the employer's
action was, in fact, motivated by discriminatory retaliation." Id. (citation and internal quotation
marks omitted).
i. Protected Activity Known to OCFS8
"Protected activity for purposes of Title VII . . . retaliation claims encompasses an
employee's complaint to supervisors about alleged unlawful activity, even if the activity turns
out not to be unlawful, provided that the employee 'had a good faith, reasonable belief that
he was opposing an employment practice made unlawful by Title VII.'" Rodas v. Town of
Farmington, 567 F. App'x 24, 26 (2d Cir. 2014) (summary order) (quoting McMenemy v. City
of Rochester, 241 F.3d 279, 285 (2d Cir. 2001)). "The objective reasonableness of a
complaint is to be evaluated from the perspective of a reasonable similarly situated
person." Id. (citation omitted).

8
This prong also requires a plaintiff to establish the employer was aware of the protected activity. At
this stage, Harder may rely on "general corporate knowledge" to establish his prima facie case. See Kwan v.
Andalex Grp. LLC, 737 F.3d 834, 844 (2d Cir. 2013). A review of the submissions suggests that
Rockafellow's superiors were aware of plaintiff's complaint, and this ambiguity is resolved in plaintiff's favor.

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Notably, the Second Circuit "has not yet ruled on the specific question of whether a
plaintiff may, under Title VII, maintain a claim of retaliation based on adverse employment
action resulting from his complaints about sexual-orientation discrimination." Giudice v. Red
Robin Intern., Inc., 555 F. App'x 67, 68-69 (2d Cir. 2014) (summary order). However, given
the overall tenor of his submissions in this case, Harder satisfies this prong of the test. In
fact, plaintiff's later DHR complaint makes clear that he firmly believed Rockafellow's earlier
denial of a light duty assignment resulted directly from "the rumors spread about [plaintiff]
relative to [his] perceived sexual orientation." Fruchter Decl., Ex. C, ECF No. 45-4, ¶ 5. And
viewed in the light most favorable to him, this complaint to the administrative law judge was
made with a good faith, reasonable belief that plaintiff was opposing an employment practice
made unlawful by Title VII—the discriminatory denial of light duty based on some animus
associated with the false impression around OCFS that plaintiff was homosexual.
ii. Adverse Employment Action
"Retaliatory behavior by an employer is not limited to that which alters a plaintiff's
conditions of employment, but is broadly defined to include any employment action that might
have dissuaded a reasonable worker from making or supporting a charge of
discrimination." Swfit, 770 F. Supp. 2d at 489 (citation and internal q uotation marks omitted).
Harder also satisfies this prong of the test, albeit not without some difficulty. Plaintiff
claims that, after he complained about Rockafellow's refusal to assign him light duty,
Rockafellow assigned him to more difficult units at Brookwood.
First, however, it must be noted that Harder only appears to actually complain of a
single instance of being assigned to an unfavorable unit—the December 23 assignment
where he suffered another on-the-job injury after restraining a resident. This is important,
- 13 -

because the record indicates that the "more difficult" units were themselves a fluid
concept: they changed on a day-to-day basis because they were located at the source of the
most recent fight between residents. As plaintiff explained in his deposition, "[e]verybody
knows . . . [where there has already been one fight,] there's a high chance that another fight
may break out . . . . [and] most people didn't want to go" to whatever difficult unit that may
currently be. Harder Dep. at 106.
That may well be the case, but the job of a YDA is to "diffuse [sic] violent situations
involving resident youth, and physically restrain resident youth who are engaging in violent
behavior." Rockafellow Decl. ¶ 5. Indeed, "[a]ll YDAs assigned to work at Brookwood
receive hazard duty pay because of the nature of the population of youth that they deal with
on a daily basis. Moreover, YDAs have sustained work-related injuries on all of the units at
Brookwood." Id. ¶ 17.9
In other words, it would seem doubtful that the action Harder identifies—a one-off
assignment to a unit where he was expected to perform the same general class of duties that
he and other YDAs were expected to perform on a daily basis—constitutes a sufficiently
adverse action to sustain a retaliation claim. Cf. Redd v. N.Y.S. Div. of Parole, 2010 WL
1177452, at *16 (E.D.N.Y. Mar. 2, 2010) (Report & Recommendation) (concluding
involuntary reassignment to different precinct was insufficient to support this element where
all employees were required to monitor individuals who had committed violent crimes and
new assignment "was not necessarily more dangerous than any other"), adopted as modified
on other grounds by 2010 WL 1177453 (E.D.N.Y. Mar. 24, 2010).
9

Other courts to have considered Title VII claims by YDAs have specifically noted that the "security
and safety" of the residents at these secure facilities is "of the utmost importance." Chinnery, 2014 WL
1651950, at *2.
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However, "[c]ontext matters, as some actions may take on more or less significance
depending on the context" in which the adverse action occurred. Tepperwien v. Entergy
Nuclear Operations, 663 F.3d 556, 568 (2d Cir. 2011) (citation and internal q uotation marks
omitted).
As relevant here, Harder claims he had already been assigned to this unit the day
before, when one of the residents "said he hated gay people and was going to cause
harm." Harder Dep. at 54. Plaintiff claims that when Rockafellow attempted to assign him to
that unit again on the day in question, plaintiff "mentioned to [Rockafellow], you know, we
had a little problem yesterday, I'm not that comfortable with it." Id. at 111. Plaintiff further
claims Lee Wynn, one of Rockafellow's superiors, had similarly "mentioned" to Rockafellow
that he did not want plaintiff assigned to that particular unit. Id.
Bearing these additional facts in mind, Harder's assignment to the unit in question on
December 23 is sufficient to satisfy the material adversity element of a prima facie
case. McKinnon v. Gonzales, 642 F. Supp. 2d 410, 427 (D.N.J. 2009) (concluding "a
factfinder could reasonably construe Plaintiff's transfer from Unit Six to the 'out of control '
Unit Three . . . as materially adverse" for purposes of a Title VII retaliation claim).
iii. Causal Connection
"Proof of causation can be shown . . . indirectly . . . through circumstantial evidence
such as disparate treatment of fellow employees who engaged in similar conduct or by
showing that the protected activity was followed closely by the adverse employment
action." Rumsey v. Northeast Health, Inc., –F. Supp. 3d–, 2015 W L 791794, at *14
(N.D.N.Y. Feb. 25, 2015) (Sannes, J.) (citing Hicks v. Baines, 593 F.3d 159, 170 (2d Cir.
2010)).
- 15 -

Harder satisfies this prong by virtue of the temporal proximity between his
administrative complaint in October 2011 and his assignment to the more difficult unit on
December 23, 2011. See Rumsey, 2015 WL 791794, at *15 ("For purposes of establishing a
prima facie case of retaliation, two months is sufficient to show a causal connection between
the protected activity and the adverse employment action." (citation and internal quotation
marks omitted)).
iv. Legitimate, Non-Retaliatory Reason
"Once a plaintiff establishes a prima facie case of retaliation, a presumption of
retaliation arises and the defendant must articulate a legitimate reason for engaging in the
adverse actions." Bowen-Hooks v. City of New York, 13 F. Supp. 3d 179, 230 (E.D.N.Y.
2014). Importantly, "[t]his burden is one of production, not persuasion; it can involve no
credibility assessment." Croons, 18 F. Supp. 3d at 203 (citation and internal q uotation marks
omitted).
OCFS has provided a straightforward reason for Harder's assignment to the so-called
"difficult" unit on December 23: "unit assignments are often affected by staff
availability." Rockafellow Decl. ¶ 18. In particular, defendants assert plaintiff was assigned
to that unit "due to a limited availability of staff, and staffing needs with respect to other
units." Id. ¶ 19. Rockafellow notes that "many other YDAs were assigned to this unit;
including YDAs with similar levels of experience to the Plaintiff." Id. This is a legitimate
reason for defendants' action.
v. Pretext
"Under the McDonnell Douglas framework, if the defendant provides a non-retaliatory
reason for the [adverse action], that reason overcomes the presumption of retaliation created
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by the plaintiff's prima facie case." Rumsey, 2015 WL 791794 at *17. "The defendant is
then entitled to summary judgment unless the plaintiff comes forward with evidence showing
that the 'non-retaliatory reason is a mere pretext for retaliation,' and that the plaintiff's
'protected activity was a but-for cause of the alleged adverse employment action by the
employer." Id. (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, –U.S.–, 133 S. Ct. 2517, 2534
(2013). "To show pretext and retaliatory motive, a plaintiff may rely on evidence comprising
[his] prima facie case, including temporal proximity, together with other evidence such as
inconsistent employer explanations, to defeat summary judgment at that stage." Id. (citations
and internal quotation marks omitted).
Undoubtedly, "the determination of whether retaliation was a 'but-for' cause, rather
than just a motivating factor, is particularly poorly suited to disposition by summary judgment,
because it requires weighing of the disputed facts." Joseph v. Owens & Minor Distrib., Inc., 5
F. Supp. 3d 295, 320 (E.D.N.Y. 2014) (quoting Kwan, 737 F.3d at 846 n. 5)). But even
viewing the record evidence in the light most favorable to Harder, there are no disputed facts
from which a reasonable factfinder could conclude that defendants reassigned plaintiff to the
unit in question in retaliation for his light duty complaint.
First, although the temporal proximity between Harder's complaint about not receiving
light duty and his reassignment to the difficult unit may have sufficed for purposes of
establishing a prima facie case, "temporal proximity alone is not enough to establish pretext
in this Circuit." Abrams, 764 F.3d 244, 254.
Second, the fact that a violent juvenile offender made a threatening comment in
Harder's presence while he was on duty at Brookwood the day before, which he later
"mentioned" to officials at OCFS, does not somehow establish that plaintiff's reassignment to
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that unit the next day was retaliation for earlier protected activity. As noted before, context
matters when undertaking this sort of inquiry. To that end, assigning a security official whose
job duties consist of supervising violent youths to a unit where a resident made a threatening
statement to that same security official the day before cannot, absent additional
circumstantial evidence far beyond what has been presented here, establish a triable issue
of fact as to a Title VII retaliation claim.
Finally, although Harder suggests that other YDAs were slow to arrive to help the day
he was injured, his written report does not indicate any such concerns and the video
submitted by defendants would seem to belie his claim. Rockafellow Decl., Ex. C, ECF No.
45-11, 21. Even assuming otherwise for purposes of this motion, plaintiff has offered
nothing, and the record reveals nothing, to connect a lethargic response by other YDAs to
any retaliatory animus attributable to them, to staff at OCFS generally, or to Rockafellow
himself.
In fact, the record indicates that YDAs of similar experience to Harder were
occasionally assigned to more difficult units, such as the one in question here, based on
changing staffing needs. Beyond the fact that he was assigned to the same unit during a
two-day period in December, plaintiff provides no evidence to show he was somehow
repeatedly singled out for assignment to these sorts of units or that he had not been
previously assigned to units where fights had recently broken out. Further, plaintiff conceded
there were no further problems at Brookwood with unit assignments up until he resigned for
the promotional opportunity at Parks and Rec. Harder Dep. at 118.
Finally, Harder's other claims of retaliation must also fail. For instance, plaintiff
suggests that Rockafellow's initial failure to assign him light duty was also "retaliation," but
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there is no indication of any "protected activity" to which this action may have been taken in
response. To the extent plaintiff believes there is a causal connection between his March
2011 complaint to supervisors at Parker Academy and Rockafellow's October 2011 denial of
a light duty assignment at Brookwood, the temporal relationship between these two events is
far too attenuated to sustain a retaliation claim . Anderson v. Davis Polk & Wardwell LLP,
850 F. Supp. 2d 392, 413 (S.D.N.Y. 2012) ("In the context of retaliation, even a span of four
months alone is insufficient to support an inference of causation.").
Likewise, given that Harder's DHR complaint was not filed until August 24, 2012, well
after the events occurred at OCFS, this protected activity cannot be the causal basis for any
of the retaliatory acts described by plaintiff. See Croons, 18 F. Supp. 3d at 208 (f inding no
causal connection where the adverse employment action occurred before plaintiff filed a
DHR complaint).
V. CONCLUSION
Harder's assertions of discrimination based on the false impression of homosexuality
fostered by Hill's comments do not bring him within the ambit of one of Title VII's protected
classes. Likewise, even assuming plaintiff's unit reassignment is a sufficiently adverse action
for purposes of a retaliation claim, there is insufficient evidence from which a rational
factfinder could conclude this assignment would not have occurred but for some retaliatory
animus attributable to defendants.
Therefore, it is
ORDERED that
1. Defendants' motion for summary judgment is GRANTED; and
2. Plaintiff's motion for summary judgment is DENIED.
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The Clerk of the Court is directed to enter a judgment accordingly and close the file.
IT IS SO ORDERED.

Dated: August 3, 2015
Utica, New York.

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