Pompey-Howard v. New York State Education Department

Filing 51

MEMORANDUM-DECISION AND ORDERED, that NYSEDs Motion for Summary Judgment (Dkt. No. 35) is GRANTED. Signed by Senior Judge Lawrence E. Kahn on July 28, 2017. (sas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
STACEY POMPEY-HOWARD,
Plaintiff,
-against-

1:15-CV-1296 (LEK/DJS)

NEW YORK STATE EDUCATION
DEPARTMENT,
Defendant.

MEMORANDUM-DECISION AND ORDER
I.

INTRODUCTION
Plaintiff Stacey Pompey-Howard commenced this action against defendant New York

State Education Department (“NYSED”) alleging discrimination on the basis of race and
retaliation in violation of Title VII, 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981, and the New
York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 296. Dkt. No. 1 (“Complaint”).
Presently before the Court is NYSED’s motion for summary judgment. Dkt. No. 35 (“Motion”);
see also Dkt. No. 35-1 (“Defendant Statement of Material Facts”); Dkt. No. 35-2 (“Defendant
Memorandum”); Dkt. No. 44 (“Response”); Dkt. No. 47 (“Plaintiff Statement of Material
Facts”); Dkt. No. 50 (“Reply”). For the reasons that follow, NYSED’s Motion is granted.
II.

BACKGROUND
A. Factual Background
Howard is an African-American woman who works for NYSED. Def. SMF ¶¶ 1–2; Pl.

SMF ¶¶ 1–2. She began working for NYSED on April 9, 2009, as a grade 18 Senior Professional
Conduct Investigator with the Office of School Personnel Review and Accountability

(“OSPRA”). Def. SMF ¶¶ 2–3; Pl. SMF ¶¶ 2–3. Her job entailed “investigating allegations of
teacher misconduct, gathering evidence, preparing investigative reports, interviewing witnesses,
[and] assisting attorneys in preparing for administrative hearings.” Dkt. No. 46 (“Plaintiff
Declaration”) ¶ 4.
In 2012, NYSED created the Testing Security Unit (“TSU”) to investigate misconduct
related to the administration of state standardized tests. Def. SMF ¶ 5; Pl. SMF ¶ 5; Resp.
at 2 n.1. In April 2012, Howard applied for a promotion to a grade 23 Supervising Professional
Conduct Investigator position at the TSU. Def. SMF ¶ 4; Pl. SMF ¶ 4. She did not receive the
promotion, but accepted an offer for a lateral transfer to a grade 18 Senior Professional Conduct
Investigator position at the TSU. Def. SMF ¶¶ 10, 14–16, 19; Pl. SMF ¶¶ 10, 14–16, 19. Howard
alleges that the director of OSPRA and the TSU, Tina Sciocchetti, promised to promote her to
the next available grade 23 position at the TSU as a condition of Howard’s acceptance of the
grade 18 position. Def. SMF ¶¶ 8, 10–11; Pl. SMF ¶¶ 8, 10–11.
The next grade 23 position opened up in August 2014, and Howard applied again for the
position. Def. SMF ¶¶ 34–35; Pl. SMF ¶¶ 34–35. Of the twenty-six applicants, eight, including
Howard, were selected for interviews. Def. SMF ¶¶ 35–36; Pl. SMF ¶¶ 35–36. The interviews
were conducted by three supervisors, Bart Zabin, Leroy Tario, and Maria Guzman. Def. SMF
¶ 37; Pl. SMF ¶ 37. Applicants were asked a standard set of questions and the interviewers
scored each applicant from one to five based on their answers. Def. SMF ¶ 38; Pl. SMF ¶ 38;
Dkt. No. 35-19 (“Tario Declaration Exhibit A”) at 2. The successful applicant, Keith Bergmann,
obtained a score of 175—the highest of all the applicants—while Howard scored a 145. Tario
Decl. Ex. A, at 1. The interview scores were tallied incorrectly, but the mistake affected
2

Bergmann and Howard’s scores equally and so it did not impact them. Id.; Reply at 3 n.1; Def.
SMF ¶¶ 39–40; Pl. SMF ¶¶ 39–40. The grade 23 position was offered to Bergmann. Def. SMF
¶ 45; Pl. SMF ¶ 45.
Howard believed that she was more qualified for the position than Bergmann. Pl. Decl.
¶ 22. Howard had been employed for five years at grade 18 when she applied for the grade 23
position. Dkt. No. 46-4 (“Plaintiff resume”). Before that, Howard performed investigations as a
Special Agent at the Office of the Inspector General from 2005 to 2009. Id. And from 2003 to
2005, Howard was a probation officer for Albany County, though it is not clear from the record
whether she performed investigative work there. Id. Howard also holds a bachelor’s degree in
criminal justice. Dkt. No. 46-1 (“Plaintiff Deposition”) at 9:17–23. Howard admitted to having
little “direct” supervisory experience. Id. at 64:18–25, 65:1–25. Assuming that Howard’s time as
a probation officer was applicable to the grade 23 position, she had twelve years of experience in
her field. Pl. resume.
Before being hired at the TSU, Bergmann had worked at the New York State Office of
Children and Family Services for almost eleven years. Dkt. No. 46-5 (“Bergman resume”). While
there, Bergmann was an Investigative Auditor responsible for conducting investigations and had
“significant” experience interviewing children. Id.; Def. SMF ¶ 43; Pl. SMF ¶ 43. He was later
promoted to Assistant Chief of Investigations, which required him to supervise and train
investigators. Id. Before that, Bergmann had four years of experience as a Child Protective
Services Investigator in Rensselaer County. Id. Bergmann holds bachelor’s degrees in criminal
justice and sociology. Id. All together, Bergmann had fifteen years of applicable experience. Id.
Ultimately, the interview committee recommended Bergmann for the position, and the decision
3

received final approval from Director Sciocchetti and her supervisor John D’Agati. Def. SMF
¶¶ 38, 47; Pl. SMF ¶¶ 38, 47.
Howard felt wronged by the hiring decision and stated in an email to Cassandra Allison
of Human Resources (“HR”) on January 5, 2015 that “[t]he only thing that is going to make me
happy is to be rightfully promoted to my grade 23 position.” Dkt. No. 35-8 (“Allison Declaration
Exhibit E”) at 3. In a separate letter dated January 28, 2015 Howard said, “I will fight this
department until I receive a remedy that’s delivered JUSTLY. . . . I want my promotion that was
stolen.” Dkt. No. 35-10 (“Allison Declaration Exhibit G”) at 2. Howard also claimed in an email
that during her interview, Tario said she was “the most qualified,” and that he had previously
stated that “he could not understand how [NYSED] would not want to promote and [sic] African
American Female [sic] into a grade 23 position.” Allison Decl. Ex. E, at 2. Howard also cited to
Director Sciocchetti’s alleged promise to promote her to the next grade 23 position. Id. Howard
reached out to Director Sciocchetti and HR to complain about the hiring decision. Id. at 2–3; Dkt.
No. 35-5 (“Allison Declaration Exhibit B”) at 1. In those emails, Howard asserted that she was
not hired for the position because of her poor relationship with another employee, Lynn
Gretschel, a grade 23 at the TSU. Allison Decl. Ex. E, at 2. Although Gretschel was not on the
hiring committee, Howard believed that Gretschel blocked her promotion. Id.; Def. SMF ¶ 37;
Pl. SMF ¶ 37. In her many emails with Allison, Howard detailed her issues with Grestchel, but
she did not claim that she lost the promotion because of race or that her issues with Grestchel
were related to race. Allison Decl. Ex. E, at 2–3; Dkt. No. 35-9 (“Allison Declaration Exhibit
F”). Howard first told Allison that she believed she was not promoted because of her race about a
month after her initial contact with HR. Dkt. No. 35-3 (“Allison Declaration”) ¶¶ 21, 23–24.
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HR opened an investigation into the hiring decision. Id. ¶ 17. During the investigation,
Howard provided HR with copies of work-related emails between her and Gretschel as proof that
Gretschel prevented her promotion. Id. ¶ 21. None of these emails suggest that Howard’s issues
with Gretschel were related to race. Id. ¶ 22; Allison Decl. Ex. G. During a phone call with
another member of HR, Anne Wieske, Howard expressed a desire to file a restraining order
against Gretschel. Def. SMF ¶ 90; Pl. SMF ¶ 90. Wieske asked Howard if she feared for her
safety. Def. SMF ¶ 89; Pl. SMF ¶ 89. Howard responded that she was not concerned for her
safety, but that she anticipated an altercation with Gretschel outside of work. Def. SMF ¶ 89; Pl.
SMF ¶ 89; Pl. Dep. 79:13–25, 80:1–25. Winske asked Howard to come to her office that
afternoon to discuss her concerns. Dkt. No. 35-22 (“Anne Wieske Declaration Exhibit A”) at 1.
At the meeting, Howard and Wieske discussed Howard’s issues with Gretschel. Id. Howard left
the meeting feeling that her issues had not been resolved. Id. at 3. In response, Howard called the
police to the HR office to file a complaint against Gretschel and then called Wieske to inform her
that she had called the police. Id. Pl. Dep. 134:2–11. When an officer arrived, Howard, Wieske,
and Allison all met with him. Wieske Decl. Ex. A, at 6. The officer asked Howard whether she
feared for her safety, and she replied that she did not. Id. The officer then informed Howard that
the police do not normally handle such issues and suggested that the matter be handled internally
through HR, but that she was welcome to file a police report if she liked. Id. HR concluded its
investigation into Howard’s allegations of discrimination and found that the hiring decision was
not discriminatory. Allison Decl. ¶ 23.
Howard claims that she began to experience retaliation soon after she informed Allison of
her belief that she did not receive the promotion because of her race. Def. SMF ¶¶ 77–78; Pl.
5

SMF ¶¶ 77–78. Primarily, Howard alleges that her supervisors exaggerated workplace incidents
to pad her personnel file so that she could be placed on involuntary leave and forced to undergo a
psychological evaluation. Resp. at 6. Howard also claims that her coworkers placed mouse
droppings on her desk, slammed doors to disturb her, and that her supervisors, Tario and
Gretschel, spied on her in a parking lot to catch her leaving work early. Pl. Dep. at 79:2–8,
143:5–25; Wieske Decl. Ex. A, at 2. NYSED argues that the fact that Howard would accuse her
coworkers of such strange behavior is additional evidence of her erratic behavior. Def. Mem.
at 10–11.
Howard alleges that in March 2015, Director Sciocchetti falsely accused her of faking an
injury to get out of work. Resp. 6–7; Def. SMF ¶¶ 82–83; Pl. SMF ¶¶ 82–83; No. 35-16
(“Sciocchetti Declaration”) ¶ 23; Dkt. No. 46-8 (“Medical Records”) at 10.1 Director Sciocchetti
testified that Howard packed up all of her personal belongings on a Friday and subsequently
failed to report to work the next week. Sciocchetti Decl. ¶ 23. When Howard returned to work,
she wore a wrist splint and a shoe boot, and she filed a workers’ compensation claim. Id. Howard
asserts that her injuries were real. Def. SMF ¶ 82; Pl. SMF ¶ 82. But she has not disputed that she
packed her desk up on a Friday and failed to report to work without explanation the following
week. Resp. at 6–7. Sciocchetti also testified that on a separate occasion, Howard entered
Sciocchetti’s office after hours without permission and went through her personal belongings.
Sciocchetti Decl. ¶ 23. Howard does not dispute that she took a personal photograph belonging to
Sciocchetti from the office and made a photocopy to keep for herself. Id.

1

The page numbers for the Medical Records refer to those generated by the Court’s
electronic filing system (“ECF”).
6

Some time later, Howard’s supervisor, Tario, received a complaint from an assistant
superintendent and a school principal about Howard’s behavior during a school monitoring visit.
Dkt. No. 35-20 (“Tario Declaration Exhibit B”) at 1–2. Howard’s job required her to conduct
observations at schools to ensure compliance with state testing requirements. Def. SMF ¶ 92; Pl.
SMF ¶ 92; Resp. at 6. It is undisputed that on the day of the monitoring visit Howard arrived at
the school without proper NYSED identification and presented her driver’s license to gain access
to the building. Def. SMF ¶ 92; Pl. SMF ¶ 92; Tario Decl. Ex. B, at 1–2. The principal also stated
that Howard demanded that the classroom doors be unlocked and the windows be uncovered—a
testing requirement—but this was against the school’s security policy. Tario Decl. Ex. B, at 2.
The principal thought Howard was unprofessional and that her behavior frightened the students.
Id. Howard maintains that the complaint was exaggerated and that her behavior was appropriate
given the school’s testing violations. Def. SMF ¶¶ 92, 94; Pl. SMF ¶¶ 92, 94. After this incident,
NYSED’s HR department began to consider placing Howard on leave until a psychological
evaluation could be performed. Def. SMF ¶ 95; Pl. SMF ¶ 95. Howard disputes this and claims
that her placement on leave was entirely attributed to NYSED’s retaliation. Def. SMF ¶ 95; Pl.
SMF ¶ 95.
In June 2015, Howard and Kristen Little, an attorney at the TSU, got in a shouting match.
Resp. at 6. Howard alleges that the disagreement was mutual, “that Little was shouting too—i.e,
that is was a ‘shouting match.’” Resp. at 6. Howard was placed on leave pending a psychological
evaluation the following day. Def. SMF ¶¶ 96–97; Pl. SMF ¶¶ 96–97. No disciplinary action was
taken against Little. Pl. Decl. ¶ 25; Resp. at 6. Howard alleges that this discrepancy in
punishment is evidence of retaliation. Resp. at 14. Howard was on involuntary leave for over two
7

months before she received the results of the psychological examination, which cleared her for
work. Def. SMF ¶¶ 96–97, 105; Pl. SMF ¶¶ 96–97, 105. Following Howard’s return to work, she
was transferred from the TSU to OSPRA at her own request. Def. SMF ¶¶ 104–105; Pl. SMF
¶¶ 104–05.
B. Procedural History
Howard filed a complaint with the Equal Employment Opportunity Commission
(“EEOC”) on October 5, 2015, alleging discrimination and retaliation on the part of her
employer. Compl. ¶ 3. Howard initiated this lawsuit on October 30, 2015. Id. She received a
right-to-sue letter from the EEOC on November 30, 2015, and amended her Complaint on
December 2, 2015, to reflect the receipt of that letter. Dkt. No. 11 (“Amended Complaint”) ¶ 3.
The Amended Complaint sets forth two causes of action under Title VII. Id. ¶¶ 26, 29. First,
Howard claims that her employer failed to promote her because of her race. Id. ¶ 26. Second, she
argues that her employer retaliated against her for filing a discrimination complaint with HR. Id.
¶ 29. On March 28, 2017, NYSED moved for summary judgment, arguing that Howard was less
qualified than the applicant hired and that she cannot prove that retaliation was the but-for cause
of any adverse employment actions. Def. Mem. at 1.
III.

LEGAL STANDARD
Rule 56 of the Federal Rules of Civil Procedure instructs courts 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(a). 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.”
8

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Taggart v. Time, Inc., 924
F.2d 43, 46 (2d Cir. 1991) (“Only when no reasonable trier of fact could find in favor of the
nonmoving party should summary judgment be granted.”).
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). Similarly, a party is entitled to summary judgment when the nonmoving party
carries the ultimate burden of proof and has failed “to establish 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.
at 322.
In attempting to repel a motion for summary judgment after the moving party has met its
initial burden, the nonmoving party “must 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). Thus, a court’s duty in reviewing a motion for summary judgment is
“carefully limited” to finding genuine disputes of fact, “not to deciding them.” Gallo v.
Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1224 (2d Cir. 1994).

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IV.

DISCUSSION
A. Title VII Failure to Promote
To establish a prima facie case of failure to promote under Title VII, a plaintiff must

show that:
(1) that [s]he is a member of a protected class; (2) that [s]he applied
for a promotion to a position for which [s]he was qualified; (3) that
[s]he was rejected for the position; and (4) after this rejection, the
position was filled by someone outside the protected class who was
similarly or less well qualified than the plaintiff.
Gordon v. City of New York, No. 14-CV-6115, 2015 WL 3473500, at *7 (S.D.N.Y. June 2,
2015). A plaintiff carries “a minimal burden of proof at the prima facie stage.” Pointdujour v.
Mount Sinai Hosp., 121 F. App’x 895, 897 (2d Cir. 2005). Once a plaintiff establishes a prima
facie case, “the burden shifts to the employer to articulate ‘some legitimate, nondiscriminatory
reason’ for its action.” Lundy v. Town of Brighton, 732 F. Supp. 2d 263, 271 (W.D.N.Y. 2010)
(quoting Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 106 (2d Cir. 2010)). If the defendant
provides a legitimate, nondiscriminatory reason for the action, “the presumption raised by the
prima facie case is rebutted and drops from the case.” Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,
507 (1993) (internal citations omitted). Ultimately, the “burden of persuading the trier of fact that
the defendant discriminated against the plaintiff remains at all times with the plaintiff.” Id.
(quoting Tex. Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).
NYSED concedes that Howard has satisfied the first three prongs of the prima facie case,
so the Court will discuss only the final prong of the test. Def. Mem. at 15–16. Further, it is well
established that “a court may simply assume that a plaintiff has established a prima facie case and
skip to the final step in the [failure to promote] analysis, as long as the employer has articulated a
10

legitimate, nondiscriminatory reason” for its failure to promote. Howard v. MTA Metro. N.
Commuter R.R., 866 F. Supp. 2d 196, 205 (S.D.N.Y. 2011). Thus, the Court now considers
NYSED’s legitimate, nondiscriminatory reason and Howard’s attempt to show pretext.
1. Legitimate, Nondiscriminatory Reason and Pretext
NYSED has offered a legitimate, nondiscriminatory reason for its hiring decision: the
successful candidate, Bergmann, was more qualified than Howard. Def. Mem. at 16. As noted
above, he had more years of investigatory and supervisory experience than Howard. Bergmann
resume; Pl. resume. And according to NYSED, Bergmann’s experience interviewing children
was another reason it hired him. Def. Mem. at 16. Additionally, Bergmann received a much
higher interview score than Howard. Id.
Howard argues that this explanation is pretextual for three reasons. Resp. at 7–9. First,
Howard asserts that she was more qualified than Bergmann. Id. at 7. Second, she claims that the
questions asked during the interview were not geared toward the actual work investigators
performed and that the interview scores were miscalculated. Id. at 9; Def. SMF ¶ 39; Pl. SMF
¶ 39.2 Last, Howard claims that Director Sciocchetti promised her the promotion and that her
supervisor, Tario, stated that she was the most qualified candidate. Resp. at 8. She asserts that the
discrepancy between her supervisors’ statements and the ultimate hiring decision demonstrates
pretext. Id. at 4. None of these arguments have merit.

2

Howard is correct that the tallies of the interview score sheets were miscalculated, but
this mistake was harmless error. Tario Decl. Ex. A; Reply at 3 n.1. The scores were uniformly
miscalculated, and so the error had no impact on the difference in score between Howard and
Bergmann. Tario Decl. Ex. A; Reply at 3 n.1. Despite the mistake, Bergmann was still the
highest rated candidate. Tario Decl. Ex. A; Reply at 3 n.1.
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“Courts have recognized that an employer’s disregard or misjudgment of a plaintiff’s job
qualifications may undermine the credibility of an employer’s stated justification for an
employment decision.” Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 103 (2d Cir.
2001). But a court is not a “super-personnel department” and should not second guess an
employer’s legitimate hiring decisions. Id. at 106. To establish pretext on the basis of an
employer’s misjudgment of her qualifications, a plaintiff must show that her credentials were “so
superior to the credentials of the person selected for the job that ‘no reasonable person, in the
exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the
job in question.’” Id. at 103 (quoting Deines v. Tex. Dep’t of Protective & Regulatory Servs., 164
F.3d 277, 280–81 (5th Cir. 1999).
Howard’s assertion that she had more “actual experience” than Bergmann is baseless.
Resp. at 8. Bergmann had fifteen years of investigatory experience while Howard had twelve.
Bergmann resume; Pl. resume. Howard also asserts that the cases Bergmann handled at Child
Services were arguably not complex, but provides no evidence for that claim. Resp. at 10. Given
their respective credentials, no reasonable juror could find that Howard was so much more
qualified than Bergmann that is was unreasonable for NYSED to choose him over her. See
Timothy v. Our Lady of Mercy Med. Ctr., 233 F. App’x 17, 21 (2d Cir. 2007) (“Absent a striking
disparity in such credentials, one should be very hesitant to draw any inference from a battle of
credentials.”); Byrnie, 243 F.3d at 102–03 (finding that while the plaintiff had over twenty-one
years of experience as an art teacher, that was not sufficient on its own to show that he was so
superior to the selected candidate, who had only four years experience as an art teacher, as to
demonstrate pretext); McGarty v. City of New York, No. 12-CV-2813, 2014 WL 4626019, *8–9,
12

15 (S.D.N.Y. Sep. 16, 2014) (refusing to find pretext based on a comparison of qualifications
where an attorney applying for a promotion was passed over in favor of younger candidates with
fewer years of experience).
Howard argues that the interview questions asked were not related to the job actually
performed and favored skills not listed in the job posting. Resp. at 3–4, 8. But Howard admits
that grade 23 investigators are at least sometimes expected to supervise employees and interview
children. Resp. at 9. It was therefore NYSED’s prerogative to use interview questions that
favored applicants with supervisory experiences even if the position required only the
supervision of one other employee. See Byrnie, 243 F.3d at 103 (“The court must respect the
employer’s unfettered discretion to choose among qualified candidates” (quoting Fischbach v.
D.C. Dep’t of Corrs., 86 F.3d 1180, 1183 (D.C. Cir. 1996))). And even if investigators rarely
interviewed minors, the Court cannot disturb NYSED’s decision to ask about this experience in
interviews. Id. These questions do not suggest any discriminatory motive on the part of the
NYSED, and the Court cannot dictate what kinds of experience an employer should favor. See
Jimenez v. City of New York, 605 F. Supp. 2d 485, 525 (S.D.N.Y. 2009) (noting that employers
may “decide which types of credentials are of the most importance for a particular job, and courts
defer to . . . employers to select what criteria are important to them when evaluating the issue of
pretext”). Howard has thus failed to rebut NYSED’s legitimate nondiscriminatory reason based
on her credentials or the interview questions asked.
Nor can Howard show pretext by pointing to Dr. Sciocchetti’s promise to Howard that
she would receive the next available grade 23 position and Tario’s statement that the Howard
was “the most qualified applicant.” Resp. at 8. The discrepancy between her supervisors’
13

statements and the ultimate hiring decision presents a potential weakness in NYSED’s legitimate,
nondiscriminatory reason. But absent other evidence of pretext, Howard’s argument that her
supervisors changed their minds about the promotion because of her race is mere speculation.
See Dismuke v. Rockford Hous. Auth., No. 98-CV-50016, 2000 WL 516198, at *6 (N.D. Ill.
Apr. 25, 2000) (holding that a promise to promote was too speculative to show pretext where
there was no evidence as to why the supervisor changed his mind). There is no reason to believe
that NYSED’s failure to follow through on its promise to promote undermines the stated
nondiscriminatory reason for its hiring decision: that based on his interview and credentials,
Bergmann ended up being the best candidate for the job. See Lane v. Terry, No. 08-CV-3781,
2010 WL 2721896, at *16 (N.D. Ga. June 4, 2010) (finding that an employer’s failure to follow
through on a promise for a permanent position was not evidence of pretext where the plaintiff
failed to actually rebut the defendant’s proffered legitimate, nondiscriminatory reason), adopted
by 2010 WL 2721536 (N.D. Ga. July 7, 2010). Finally, the fact that Tario thought that Howard
was the most qualified candidate is not sufficient to show pretext. Tario was only one of three
persons on the interview committee, so his statements are not inconsistent with the ultimate
hiring decision. Resp. at 8; Tario Decl. Ex. A, at 2–5, 54–57;3 see also Maye v. Gonzales,
No. 00-CV-0271, 2005 WL 3544292, at *8 (D.D.C. Dec. 27, 2005) (holding that the fact that one
supervisor thought that the plaintiff was qualified for a promotion was not enough to show
pretext).

3

The page numbers for Tario Declaration Exhibit A refer to those generated by ECF.
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B. Title VII Retaliation
To establish a prima facie case of retaliation under Title VII, a plaintiff must show that:
(1) she was engaged in protected activity; (2) the employer was aware of that activity; (3) she was
thereafter subjected to an adverse employment action; and (4) there was a causal connection
between her protected activity and the adverse action. Patane v. Clark, 508 F.3d 106, 115 (2d Cir.
2007). A plaintiff carries “a minimal burden of proof at the prima facie stage.” Pointdujour, 121
F. App’x at 897. Once a plaintiff establishes a prima facie case, the burden shifts to the
“employer to articulate a legitimate, non-retaliatory reason for the adverse employment action.”
Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005). “Finally, if the defendant
carries his burden[,] ‘the presumption of retaliation dissipates’ and the plaintiff must demonstrate
that the legitimate reason offered is mere pretext for retaliation.” Sharpe v. Utica Mut. Ins. Co.,
756 F. Supp. 2d 230, 238–39 (N.D.N.Y. 2010) (quoting Hicks v. Baines, 593 F.3d 159, 164–65
(2d Cir. 2010)). NYSED concedes that Howard has satisfied the first two prongs of the test, so
the Court will start by discussing whether Howard suffered an adverse employment action.
1. Adverse Employment Action
To establish an adverse employment action for purposes of Title VII retaliation, a plaintiff
must show that her employer engaged in action that “could well dissuade a reasonable worker
from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 57 (2006). “Title VII’s anti-discrimination and anti-retaliation provisions
‘are not coterminous’; anti-retaliation protection is broader and ‘extends beyond
workplace-related or employment-related retaliatory acts and harm.’” Hicks, 593 F.3d at 165
(quoting White, 548 U.S. at 67). “‘Context matters,’ as some actions may take on more or less
15

significance depending on the context.” Tepperwien v. Entergy Nuclear Operations, 663 F.3d
556, 568 (2d Cir. 2011) (quoting White, 548 U.S. at 69).
At least one court in this circuit has held that being placed on involuntary leave pursuant
to Section 72 of New York Civil Service Law constitutes an adverse employment action for
purposes of retaliation. Flynn v. N.Y. State Div. of Parole, 620 F. Supp. 2d 463, 495 (S.D.N.Y.
2009). NYSED concedes that “[t]here is a question as to whether involuntary leave pursuant to
New York Civil Service Law section 72 constitutes an adverse employment action,” Def. Mem.
at 19, but NYSED argues that based on the facts in this case, Section 72 leave is not an adverse
employment action. Id. The Court need not decide this issue. Even if Howard could show that
under these circumstances her Section 72 leave was an adverse employment action, her
retaliation claim would still fail because she cannot show that NYSED’s legitimate,
nonretaliatory reasons for placing her on Section 72 leave were pretextual. Mitchell v. St. Univ.
of N.Y. (SUNY) Upstate Med. Univ., No. 14-CV-701, 2017 WL 1047336, at *20–21 (N.D.N.Y.
Mar. 17, 2017).
2. Causation
Howard argues that she has satisfied the causation prong via temporal proximity. Resp.
at 13. Because it is well established that “a court may simply assume that a plaintiff has
established a prima facie case and skip to the final step” of showing pretext, Howard, 866 F.
Supp. 2d at 205, the Court will assume that Howard has made out a prima facie case and move
on to consider NYSED’s legitimate, nonretaliatory reason and Howard’s attempt to show pretext.

16

3. Legitimate, Nonretaliatory Reason and Pretext
NYSED has provided a legitimate, nonretaliatory reason for placing Howard on
leave—she was behaving erratically and acting aggressively toward coworkers. Def. Mem. at 21.
A plaintiff may show pretext by pointing to “weaknesses, implausibilities,
inconsistencies, or contradictions in the employer’s proffered legitimate, nonretaliatory reasons
for its action.” Zann Kwan v. Andalex Grp., 737 F.3d 834, 846 (2d Cir. 2013). But “in order to
infer pretext for a retaliatory motive from multiple justifications, a defendant’s nonretaliatory
justifications must be not merely different, but inconsistent with one another.” Richardson v.
Bronx Lebanon Hosp., No. 11-CV-9095, 2014 WL 4386731, at *16 (S.D.N.Y. Sept. 5, 2014)
(collecting cases); see also Irons v. Bedford Stuyvesant Cmty. Legal Servs., No. 13-CV-4467,
2015 WL 5692860, at *30 (E.D.N.Y. Sept. 28, 2015) (“As these varied explanations for
Plaintiffs’ selection for termination are not contradictory, this . . . fails to raise a question of fact
as to whether Defendants would not have terminated Plaintiffs but for their retaliatory motives.”).
Additionally, “[a]n 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.”
Hexemer v. Gen. Elec. Co., No. 12-CV-1808, 2015 WL 3948418, at *9 (N.D.N.Y. June 29,
2015) (Kahn, J.) (citing Quaratino v. Tiffany & Co., 71 F.3d 58, 64 (2d Cir. 1995)). Moreover,
“[i]n order to succeed on a retaliation claim after a defendant has established a legitimate,
non-discriminatory reason for the adverse action, the plaintiff must present evidence that
retaliation was the ‘but-for’ cause of the action.” Varno v. Canfield, 664 F. App’x 63, 66 (2d Cir.
2016) (citing Univ of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013)) “‘[B]ut-for’
causation does not require proof that retaliation was the only cause of the employer’s action, but
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only that the adverse action would not have occurred in the absence of the retaliatory motive.”
Zann Kwan, 737 F.3d at 846.
Here, Howard has failed to present enough evidence to allow a reasonable jury to find
that but for the protected activity, she would not have experienced any adverse employment
actions. Further, the alleged weaknesses and inconsistencies she points to are not sufficient to
demonstrate pretext. See Flemming v. MaxMara USA, Inc., 371 F. App’x 115, 117–18 (2d Cir.
2010) (noting that plaintiff’s “disagreement with defendants over whether her behavior was
inappropriate does not show that their stated reasons for terminating her were not their true
reasons”); Mello v. Siena Coll., 15-CV-13, 2017 WL 1013077, at *17 (N.D.N.Y. Mar. 14, 2017)
(finding that a plaintiff’s assertion that defendant was wrong about her poor performance was not
sufficient to show pretext); Rodriguez v. City of New York, 644 F. Supp. 2d 168, 187 (E.D.N.Y.
2008) (“[T]he fact that an employee disagrees with an employer’s decision regarding termination,
or even has evidence that the decision was objectively incorrect or was based on a faulty
investigation, does not automatically demonstrate, by itself, that the employer’s proffered reasons
are a pretext for termination.”).
Howard accuses NYSED of padding her personnel file by mischaracterizing and
exaggerating work-related incidents. Resp. at 6. But even taking Howard’s description of these
events as true, she unarguably still acted inappropriately on several occasions, and her behavior
fully justified NYSED’s decision to place her on leave. Intervening casual events that occur after
the protected activity but before the adverse employment action remove any inference of
causation where the intervening event would have been good cause for the adverse employment
action. Hahn v. Bank of Am. Inc., No. 12-CV-4151, 2014 WL 1285421, at *19 (S.D.N.Y. Mar.
18

31, 2014), aff’d, 607 F. App’x 55 (2d Cir. 2015). In this case, Howard was responsible for
multiple incidents that plainly justified placing her on leave.
First, Howard asserts that her behavior during the school observation visit was
appropriate given the School’s violations of testing requirements, and that NYSED therefore
exaggerated the incident. Pl. Decl. ¶ 30. But Howard has not adequately disputed that she arrived
at the school without TSU identification and gained access to the school by providing a driver
license. Tario Decl. Ex. B, at 1–2; Pl. Decl. ¶¶ 29–30. And even if Howard were behaving
appropriately in light of the school’s violations, she does not dispute that her behavior frightened
the students. Pl. Decl. ¶¶ 29–30.
Next, Howard argues that the injuries that caused her to miss work were real and that
Director Sciocchetti wrongly accused her of faking them to get out of work. Resp. at 14. But
even if Howard’s injuries were real, she fails to dispute that she packed up her entire desk and
then left early on a Friday and failed to report to work the following week without informing her
employer. Def. SMF ¶ 82; Pl. SMF ¶ 82; Pl. Decl. ¶ 26. Notably, the medical records Howard
provides to prove that her injuries were real corroborate Director Sciocchetti’s time line of
events. Medical Records at 10. The doctor’s note shows that Howard admitted to being out of
work since Friday when she went to see the doctor the following Wednesday. Id.
Lastly, Howard concedes that she yelled at her colleague, Kristen Little, but she stresses
that Little shouted at her as well and yet did not receive any discipline. Resp. at 6. This argument
lacks merit for two reasons. First, this incident was the final straw after five months of Howard’s
inappropriate behavior, and there is no evidence that Little ever engaged in similar behavior. Def.
Mem. at 12, 20–21. Thus, while evidence of disparate treatment of similarly situated people can
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show retaliatory intent, Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000), Little
and Howard are not similarly situated. Second, even if Howard and Little were equally at fault
for the shouting match, the mere fact that Howard engaged in shouting at all is a nonretaliatory
reason for the adverse employment action. See Rumsey v. Ne. Health, Inc., 89 F. Supp. 3d 316,
339 (N.D.N.Y. 2015) (“Regardless of the intensity of the disagreement, . . . the disagreement is a
non-retaliatory basis for terminating plaintiff’s employment.”); Joseph v. Owens & Minor
Distribution, Inc., 5 F. Supp. 3d 295, 319–20 (E.D.N.Y. 2014) (noting that the fact that the
plaintiff was not responsible for a disagreement “does not establish that Defendant was
retaliating against Plaintiff when it terminated Plaintiff over the disagreement with the customer
since, regardless of who was responsible for the disagreement, the disagreement itself is a
non-retaliatory basis for terminating Plaintiff”), aff’d, 594 F. App’x 29 (2d Cir. 2015).
In addition to the disputed incidents above, there were many other incidents that Howard
has not disputed at all. This includes informing Allison, an HR representative, that she wanted to
file a restraining order against her supervisor Gretschel, even though Howard said that she did
not fear for her safety. Def. SMF ¶¶ 89–90; Pl. SMF ¶¶ 89–90. Howard later called the police to
the HR office to file a complaint against Gretschel because she was not satisfied with the result
of her meeting with Wieske, an HR representative. Pl. Decl. ¶ 27; Wieske Decl. Ex. A, at 1, 3, 6.
Finally, Howard has not disputed that she snuck into Director Sciocchetti’s office and made a
photocopy of a personal photo she found there. Sciocchetti Decl. ¶ 23. Even viewing the facts in
the light most favorable to Howard, she has been combative with multiple coworkers, invaded
her supervisor’s privacy, failed to report to work without explanation, and behaved improperly
while carrying out her professional duties. Howard has not offered any evidence allowing a
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reasonable jury to conclude that but for the protected activity, she would not have been placed on
leave. Ultimately, Howard has failed to create a genuine issue of material fact as to whether
NYSED’s legitimate, nonretaliatory explanation for its decision to place her on involuntary leave
is a pretext for retaliation.4
V.

CONCLUSION
Accordingly, it is hereby:
ORDERED, that NYSED’s Motion for Summary Judgment (Dkt. No. 35) is

GRANTED; 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:

July 28, 2017
Albany, New York

4

NYSED has not consented to suit in federal court, and therefore has Eleventh
Amendment immunity against Plaintiff’s § 1981 and NYSHRL law claims. Posr v. Court Officer
Sheild No. 207, 180 F.3d 409, 414 (2d Cir. 1999); Jackson v. Battaglia, 63 F. Supp. 3d 214, 220
(N.D.N.Y. 2014). For that reason, the Court grants NYSED’s Motion with regard to those
claims.
21