Dotson v. New York State Workers Compensation Board
MEMORANDUM-DECISION AND ORDER granting 21 Motion for Summary Judgment: The Court hereby ORDERS that Defendant's motion for summary judgment (Dkt. No. 21) is GRANTED; and the Court further ORDERS that the Clerk of the Court shall enter jud gment dismissing this action; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Memorandum- Decision and Order on all parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 3/6/2018. (ban)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
CANDEE A. DOTSON,
NEW YORK STATE WORKERS
LAW OFFICES OF PATRICK SORSBY
1568 Central Avenue - 1st Floor
Albany, New York 12205
Attorney for Plaintiff
PATRICK SORSBY, ESQ.
NEW YORK STATE ATTORNEY
GENERAL - ALBANY OFFICE
Albany, New York 12224
Attorneys for Defendant
SHANNAN KRASNOKUTSKI, ESQ.
Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
Plaintiff Candee A. Dotson commenced the present action against the New York State
Workers Compensation Board ("WCB") alleging discrimination, retaliation, and hostile work
environment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the
New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 290 et seq. See Dkt. No. 1.
Presently before the Court is Defendant's motion for summary judgment. See Dkt. No. 21. For
the following reasons, Defendant's motion is granted.
Unless otherwise indicated, the facts set forth below are drawn from Defendant's
statement of material facts. Local Rule 7.1(a)(3) sets forth the Northern District's rules for
summary judgment motions. The rule requires the moving party to submit a statement of material
facts ("SMF") "about which the moving party contends there exists no genuine issue," and each
fact asserted must include a specific citation to the record. See L.R. 7.1(a)(3). The opposing
party must file a response to the SMF admitting or denying each of the movant's factual assertions
and "[e]ach denial shall set forth a specific citation to the record where the factual issue arises."
See id. The Local Rules specifically state that the "Court shall deem admitted any properly
supported facts set forth in the Statement of Material Facts that the opposing party does not
specifically controvert." See id.
In this case, Defendant filed an SMF, and Plaintiff submitted a response to the SMF. See
Dkt. Nos. 22, 29. Plaintiff's response denies many of Defendant's factual assertions, but Plaintiff
almost entirely fails to cite to the record identifying where the factual issue arises. To the extent
that Plaintiff denies properly supported factual assertions without citing to the record, the Court
deems those assertions admitted. See N.Y. State Teamsters Conference Pension & Ret. Fund v.
Express Servs., Inc., 426 F.3d 640, 648 (2d Cir. 2005) (upholding the district court's decision to
deem admitted any facts properly set forth in the movant's SMF that were not specifically
controverted by the nonmovant's response); Meaney v. CHS Aquisition Corp., 103 F. Supp. 2d
104, 109-10 (N.D.N.Y. 2000) ("Because the nonmovant . . . has failed to comply with the
requirements of L.R. 7.1(a)(3), and to controvert with specificity the facts set forth in [the
movant's] Statement of Material Facts, the Court will deem admitted as uncontroverted all the
facts properly set forth"). The Court will not sift through the 1074 pages of documents attached
to Plaintiff's opposition to determine whether Plaintiff's denials are supported in the record.1
Plaintiff is an African-American woman who was employed by the WCB for
approximately seventeen years. See Dkt. No. 22 at ¶¶ 1-2. Plaintiff worked as a stenographer, or
Verbatim Reporter I, and was supervised by people holding the position of Verbatim Reporter II.
See id. at ¶¶ 2-3. From 2005 to 2010, Plaintiff was supervised by Linda Engel, and from 2010
until her termination in March 2016, Plaintiff was supervised by Deborah Layaou. See id. at
As a Verbatim Reporter I, Plaintiff recorded WCB proceedings using a stenograph
machine. See id. at ¶ 28. Transcripts of proceedings may be requested by parties related to the
WCB ("WCB Parties") or by any non-WCB party of interest to the hearing ("Outside Parties").
See id. at ¶ 29. WCB Parties may request transcripts free of charge, but a Verbatim Reporter I
may charge a transcript fee to Outside Parties. See id. at ¶¶ 31-32. That transcript fee is separate
from a Verbatim Reporter's civil service salary, and the Verbatim Reporters are not required to
split the fee with the WCB. See id. at ¶¶ 33-35. Verbatim Reporters may prepare transcripts of
hearings for Outside Parties using WCB computers during work hours, but only if their other
work is up to date. See id. at ¶ 36. In contrast, Verbatim Reporters may prepare transcripts of
The Court also notes that Plaintiff improperly submitted voluminous documents along
with her opposition. For example, Plaintiff describes her Exhibit 10 as "copies of deposition
Exhibits 1 through 45 which are exhibits for the Defendants [sic] Depositions supra." Dkt. No. 28
at ¶ 12. Plaintiff's Exhibit 10 is 345 pages. See Dkt. No. 28-10. It is the job of Plaintiff's
counsel—not the Court—to review depositions and discovery responses, determine which
portions are relevant, and submit only the relevant documents to the Court.
depositions for Outside Parties, but they may not do so during work hours or using WCB
equipment. See id. at ¶ 38.
There are various standards regulating the conduct of Verbatim Reporters that provide
guidance on using WCB supplies and equipment in furtherance of private business. Those
standards are provided by (1) the New York Public Officers Law ("NYPOL"), (2) the WCB
Policy on Thefts in the Workplace, (3) the Verbatim Reporter Work Standards, and (4) the WCB
Standards on Conflict of Interest and Outside Employment. See id. at ¶¶ 39-50. First, New York
Public Officers Law provides:
No officer or employee of a state agency, member of the legislature
or legislative employee should use or attempt to use his or her
official position to secure unwarranted privileges or exemptions for
himself or herself or others, including but not limited to, the
misappropriation to himself, herself or to others of the property,
services or other resources of the state for private business or other
compensated non-governmental purposes.
N.Y Pub. Off. L. § 74(3)(d). All WCB employees received an ethics training regarding the
NYPOL in 2007, as well as a follow-up e-mail in 2010. See Dkt. No. 22 at ¶¶ 42-43. The email
stated that the NYPOL's prohibition on misappropriation "includes, but is not limited to,
telephones, copiers, fax machines, computers, software, paper, email, office supplies, postage,
courier services, internet access, and fellow employees." Dkt. No. 21-11 at 1.
Second, the WCB Policy on Thefts in the Workplace was emailed to all employees in
2009. See Dkt. No. 22 at ¶ 45. The policy states that "[e]xamples of employee theft include but
are not limited to: conducting personal business on state time; using state equipment, materials or
vehicles for personal business; improper use of the mail copiers, fax machines . . . and personal
use of stationary, supplies, postage, and any other state owned resource." Dkt. No. 21-12 at 1.
Third, the Verbatim Reporter Work Standards also clearly state that Verbatim Reporters may not
work on deposition transcripts at WCB facilities and that "[t]he use of WCB supplies is
authorized only for WCB assigned work." Dkt. No. 21-13 at 2. Finally, the WCB Standards on
Conflict of Interest and Outside Employment state that WCB employees may engage in outside
employment provided that "employees do not utilize any Board facilities, resources or services to
further such activities, including but not limited to the use of telephone, email, internet, office
supplies, postage, photocopying machines, computers, Board data, information technology and
resources, or support staff assistance." Dkt. No. 21-14 at 2.
On May 11, 2015, a WCB mailroom employee found four WCB envelopes—including
one unaddressed envelope—in an outgoing mail bin. See Dkt. No. 22 at ¶ 65. Because the
unaddressed envelope contained a hearing transcript bearing Plaintiff's name, the mailroom
employee brought the envelope to Layaou. See Dkt. No. 22-1 at ¶¶ 20-21. Eventually, the issue
was brought to the HR Department, which commenced an investigation into the incident. See
Dkt. No. 22 at ¶¶ 70-71. As part of that investigation, the HR Department directed Layaou to
collect any envelopes reflecting additional attempts by Plaintiff to violate WCB policies. See id.
at ¶ 72. Between May 11, 2015 and May 29, 2015, Layaou collected twenty-two such envelopes.
See id. at ¶ 73.
On June 3, 2015, Plaintiff was interrogated by an HR Department employee regarding
Plaintiff's use of WCB supplies and mail facilities. See id. at. ¶ 74. Following the hearing, the
HR Department employee emailed Layaou and asked her to remove Plaintiff from any future
scheduled hearings. See id. at ¶ 77. On June 29, 2015, the WCB's Director of Human Resources
issued a Notice of Discipline against Plaintiff proposing Plaintiff's termination. See id. at ¶¶ 8081. Plaintiff filed a grievance pursuant to the contract with her union, and her case was referred
to an arbitrator. See id. at ¶¶ 82-83. On August 7, 2015, Layaou discovered an invoice bearing
Plaintiff's name, which related to the faxing of a 34-page document. See id. at ¶ 84. On August
13, 2015, Plaintiff was interrogated by an HR Department employee regarding Plaintiff's use of
the fax machine. See id. at ¶ 87. On August 13, 2015, Plaintiff was suspended without pay and
the HR Department issued another Notice of Discipline proposing Plaintiff's termination. See id.
at ¶ 90. Once again, Plaintiff filed a grievance and the issue was referred to arbitration. See id. at
¶ 92. At various times throughout the interrogations and arbitration hearings, Plaintiff admitted
that she knowingly violated WCB policy and made a conscious decision to disobey her
supervisor. See Dkt. No. 21-35 at 41; Dkt. No. 21-20 at 6-7.
On March 7, 2016, the arbitrator reviewing the August Notice of Discipline issued an
opinion upholding the penalty of termination. See id. at ¶ 94. In the opinion, the arbitrator noted:
Not only do the proofs in the exhibits and many witnesses stand,
but even Grievant herself admitted that she was engaged in the
actions alleged in the charges. The only distinction is that Grievant
maintains that she has done nothing wrong. Grievant stood in this
conviction as a witness at hearing, and Grievant has given no
indiction that if given another chance she would follow the correct
rules of the Workers Compensation Board. Grievant gave no
promise that she would stop these practices if she was returned to
Dkt. No. 21-23 at 14. On March 8, 2016, the WCB terminated Plaintiff's employment. See Dkt.
No. 22 at ¶ 96. The union subsequently withdrew its representation of Plaintiff in the arbitration
proceedings related to the June Notice of Discipline. See id. at ¶ 97. Because Plaintiff did not
pay certain costs associated with the arbitration proceedings, no opinion was ever issued in regard
to the June Notice of Discipline. See id. at ¶ 99.
Allegations of Discrimination
In the complaint, Plaintiff alleges that she was subject to discrimination because of her
race. Virtually all of Plaintiff's allegations of discrimination revolve around her treatment at the
hands of Layaou. Plaintiff alleges that "[e]arly on in Plaintiff's career" with WCB, Layaou told
Plaintiff that "there are niggers and black people and I consider you a black person." Dkt. No. 1
at ¶ 9. Layaou denies that she ever made that statement. See Dkt. No. 21-1 at ¶ 37.
Plaintiff makes a number of other allegations of mistreatment by Layaou, none of which
were explicitly related to race, but Plaintiff implies that they were racially motivated. For
example, Plaintiff alleges that Layaou assigned more work to white Verbatim Reporters than she
did to Plaintiff. See id. at ¶ 24. Additionally, the complaint references several other incidents,
including the following: (1) on one occasion Layaou said to Plaintiff, "[g]et away from me," id. at
¶ 17; (2) Layaou once "called the Plaintiff's home at 8:00 AM on a Saturday morning in February
2015 to intimidate and harass her," id. at ¶ 21; and (3) "on a number of occasions [Layaou] would
purposely step in front of [Plaintiff] and laugh at her," id. at ¶ 11. Layaou denies each of these
allegations, though she admits to calling Plaintiff's home on a Saturday morning in February 2014
to advise Plaintiff of a coworker's daughter's funeral. See Dkt. No. 21-1 at ¶¶ 39-48. Layaou
provides a copy of her cell phone records showing a call to Plaintiff's home on Saturday, February
15, 2014. See Dkt. No. 21-7 at 1.
Finally, Plaintiff argues in her opposition that a white Verbatim Reporter I received a far
lighter punishment for similar conduct. See Dkt. No. 30 at 10-17. In May 2009, a white
Verbatim Reporter I ("JC") in Rochester, New York, was accused of using WCB envelopes and
postage to mail out invoices and transcripts. See Dkt. No. 22 at ¶ 60.2 JC was accused of
JC was also charged with falsifying her time sheet by using sick leave accruals to attend
a deposition. See Dkt. No. 21-15. Plaintiff was not charged with falsifying her time sheet in the
June 29, 2015 Notice of Discipline or the August 18, 2015 Notice of Discipline. See Dkt. Nos.
violating the WCB Standards on Conflict of Interest and Outside employment, as well as the New
York Public Officers Law. See Dkt. No. 22-15 at 5-7.3 In a Notice of Discipline issued by thenDirector of Human Resources Lisa Sunkes, the proposed penalty for JC's conduct was a sixty-day
suspension without pay. See id. at 5. Eventually, JC and the WCB reached a settlement
agreement wherein JC agreed to a ten-day suspension without pay and a twelve-month
disciplinary probation period. See Dkt. No. 21-16.
On June 23, 2015, Plaintiff filed a complaint with the New York State Division of Human
Rights ("NYSDHR") against the WCB and Layaou. See Dkt. No. 23 at ¶ 23. Plaintiff alleged
that Layaou had assigned Plaintiff to unfavorable tasks, intentionally failed to communicate with
Plaintiff, and attempted to intimidate Plaintiff because of Plaintiff's race. See Dkt. No. 21-30 at
1-2. After investigating Plaintiff's complaint, NYSDHR issued a determination of "no probable
cause to believe that the respondents [engaged in] the discriminatory practice complained of."
Dkt. No. 21-31 at 1. On August 26, 2015, Plaintiff filed a second NYSDHR complaint, this time
alleging that her August 13, 2015 suspension—which WCB claimed was due to her unauthorized
use of the fax machine—was issued in retaliation for Plaintiff's June 2015 NYSDHR complaint.
See Dkt. No. 21-32 at 1. NYSDHR once again issued a determination of no probable cause and
dismissed Plaintiff's complaint. See Dkt. No. 21-33 at 1.
III. LEGAL STANDARD
A court may grant a motion for summary judgment only if it determines that there is no
genuine issue of material fact to be tried and that the facts as to which there is no such issue
The cited page numbers for this docket entry refer to those assigned by the Court's
electronic filing system ("ECF").
warrant judgment for the movant as a matter of law. See Chambers v. TRM Copy Ctrs. Corp., 43
F.3d 29, 36 (2d Cir. 1994) (citations omitted). When analyzing a summary judgment motion, the
court "'cannot try issues of fact; it can only determine whether there are issues to be tried.'" Id. at
36-37 (quotation and other citation omitted). Moreover, it is well settled that a party opposing a
motion for summary judgment may not simply rely on the assertions in its pleading. See Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting Fed. R. Civ. P. 56(c), (e)).
In assessing the record to determine whether any such issues of material fact exist, the
court is required to resolve all ambiguities and draw all reasonable inferences in favor of the
nonmoving party. See Chambers, 43 F.3d at 36 (citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986)) (other citations omitted). Where the non-movant either does not respond to the
motion or fails to dispute the movant's statement of material facts, the court may not rely solely
on the moving party's Rule 56.1 statement; rather, the court must be satisfied that the citations to
evidence in the record support the movant's assertions. See Giannullo v. City of New York, 322
F.3d 139, 143 n.5 (2d Cir. 2003) (holding that not verifying in the record the assertions in the
motion for summary judgment "would derogate the truth-finding functions of the judicial process
by substituting convenience for facts").
"[S]ummary judgment may be requested not only as to an entire case but also as to a
claim, defense, or part of a claim or defense." Fed. R. Civ. P. 56(a) advisory committee's note to
2010 amendment. Summary judgment may also be granted against any part of the remedy sought
by the opposing party's claims. See Hamblin v. British Airways PLC, 717 F. Supp. 2d 303, 307
"Title VII provides that it is 'an unlawful employment practice for an employer . . . to
discriminate against any individual with respect to his compensation, terms, conditions, or
privileges of employment because of such individual's race, color, religion, sex, or natural
origin.'" Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 63 (1986) (quoting 42 U.S.C. §
2000e–3(a)). Discrimination claims under Title VII are analyzed according to the burden-shifting
framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under the
McDonnell Douglas framework, a plaintiff must first make a prima facie case of discrimination
by showing that "(1) she is a member of a protected class; (2) she is qualified for her position; (3)
she suffered an adverse employment action; and (4) the circumstances give rise to an inference of
discrimination." Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000) (citing McDonnell
Douglas, 411 U.S. at 802). "Once an employee makes a prima facie case of [discrimination], the
burden shifts to the employer to give a legitimate, non-discriminatory reason for its actions."
Kirkland v. Cablevision Sys., 760 F.3d 223, 225 (2d Cir. 2014). Finally, if the employer is able to
provide such a reason, "the burden shifts back to the plaintiff to show that the employer's
explanation is a pretext for race discrimination." See id.
1. Prima Facie Case
In this case, Defendant concedes that Plaintiff has established the first three elements of
her prima facie case. See Dkt. No. 21-19 at 12. Plaintiff is African-American, she was qualified
for her position as a Verbatim Reporter I, and she suffered multiple adverse employment
actions—she was removed from calendar duties, she was suspended, and she was eventually
terminated. Therefore, the only element in question is whether the circumstances of the adverse
employment actions give rise to an inference of discrimination. Plaintiff provides the following
evidence to support an inference of discrimination: (1) Layaou's racially discriminatory behavior,
and (2) the disparate treatment of JC.
First, Plaintiff alleges in the complaint that Layaou racially discriminated against Plaintiff
throughout her employment. Perhaps the most egregious conduct alleged by a Plaintiff is a
racially discriminatory statement attributed to Layaou from "[e]arly on in Plaintiff's career" with
the WCB, which began in 1998. Dkt. No. 1 at ¶ 9. Therefore, the statement—which Layaou
denies making—was from approximately seventeen years before the employment actions in
question, which undercuts any inference of discrimination. See Haseman v. United Parcel
Service of Am., No. 11-CV-554, 2013 WL 696424, *7 (D. Conn. Feb. 26, 2013) ("Comments too
remote in time and context cannot support an inference of discriminatory intent"); Buckman v.
Calyon Sec. (USA) Inc., 817 F. Supp. 2d 322, 336 (S.D.N.Y. 2011) ("Although a reasonable juror
could find that the remark itself was discriminatory, it was too remote in time and context to
support a reasonable inference that [plaintiff's] discharge was a result of race discrimination").
Plaintiff also alleges that she was consistently mistreated by Layaou during her time with
the WCB, and that the mistreatment was due to racial discrimination. See Dkt. No. 1 at ¶¶ 9-25.
However, many of Plaintiff's allegations do not stand up to scrutiny. For example Plaintiff
alleges that Layaou assigned less work to Plaintiff than to her white coworkers. See Dkt. No. 1 at
¶ 24. But between August 2014 and June 2015, Plaintiff was fifth (of eight Verbatim Reporter I
employees) in half-day calendar assignments per month, and she was second in the average
number of transcription pages received per month. See Dkt. No. 22 at ¶¶ 118-20. Other
allegations simply do not make sense. See Dkt. No. 1 at ¶ 15 ("When Ms. Dotson answered call's
[sic] Supervisor Layaou would say 'Candee it's a man repeatedly'. The person on the other side
could hear this"). "Such isolated events over an extended period of time have little intrinsic
probative value." Patterson v. County of Oneida, 375 F.3d 206, 222 (2d Cir. 2004).
Additionally, the limited probative value of those events is further undercut by the fact
that Layaou did not have the power to initiate disciplinary proceedings or terminate Verbatim
Reporters. See Dkt. No. 22 at 19. Comments made by a co-worker are not sufficient to establish
an inference of discrimination with respect to a plaintiff's termination where that co-worker was
not involved in the decision-making process. See Patterson, 375 F.3d at 221-23 (holding that the
plaintiff failed to raise an inference of discrimination where he showed a pattern of racially
discriminatory comments by co-workers but provided no evidence that the decision-makers
engaged in discrimination); see also Howe v. Town of Hempstead, No. 04-CV-656, 2006 WL
3095819, *7 (E.D.N.Y. Oct. 30, 2006) ("Racist comments may constitute evidence of an intent to
discriminate, but only if a sufficient nexus exists between the comments and the adverse
employment action. This connection exists if the comments were made by the decision-maker or
by someone who had great influence over the decision maker" (citation omitted)). Although
Layaou was involved in the investigation insofar as she reported Plaintiff's activity and was
instructed to collect envelopes, it is not clear that she had great influence over the decisionmakers.
Second, Plaintiff attempts to create an inference of discrimination by comparing her
situation to that of JC, a Verbatim Reporter I who was similarly accused of using WCB envelopes
and postage for mailing transcripts to Outside Parties. See Dkt. No. 22 at ¶ 60. As a punishment,
JC received a ten-day suspension without pay and one year of probation. See id. at ¶ 64.
According to Plaintiff, the fact that JC received a lighter punishment than Plaintiff for similar
conduct is sufficient to give rise to an inference of discrimination. See Dkt. No. 30 at 14.
"A showing of disparate treatment—that is, a showing that an employer treated plaintiff
'less favorably than a similarly situated employee outside his protected group'—is a recognized
method of raising an inference of discrimination for the purposes of making out a prima facie
case." Ruiz v. County of Rockland, 609 F.3d 486, 494 (2d Cir. 2010) (quoting Mandell v. County
of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003)). The circumstances of the similarly situated
employees need not be identical, but "the comparators must be similarly situated to the plaintiff
'in all material respects.'" Eka v. Brookdale Hosp. Med. Ctr., 247 F. Supp. 3d 250, 271-72
(E.D.N.Y. 2017) (quoting Ruiz v. Cty. of Rockland, 609 F.3d 486, 493 (2d Cir. 2010)). "What
constitutes 'all material respects' therefore varies somewhat from case to case and . . . must be
judged based on (1) whether the plaintiff and those he maintains were similarly situated were
subject to the same workplace standards and (2) whether the conduct for which the employer
imposed discipline was of comparable seriousness." Graham v. Long Island R.R., 230 F.3d 34,
40 (2d Cir. 2000).
Here, Plaintiff and JC were not similarly situated in all material respects. There are at least
three important differences between Plaintiff and JC. First, JC's conduct took place
approximately six years before Plaintiff's, and JC and Plaintiff were disciplined by different
decision-makers. See Lifranc v. N.Y.C. Dep't of Educ., No. 07-CV-1109, 2010 WL 1330136, *16
(E.D.N.Y. Apr. 6, 2010) (finding that a comparator was not similarly situated in part because he
was "disciplined at a different time than 2006 (2003), by different decision-makers"). Second, the
WCB Policy on Thefts in the Workplace, which is one of the rules under which Plaintiff was
disciplined, was not in place at the time of JC's conduct. See Dkt. No. 22 at ¶ 63. As the Court
notes above, comparators are not "similarly situated in all material respects" if they were subject
to different workplace standards. See Graham, 230 F.3d at 40. Third, as the arbitrator stated in
her decision upholding Plaintiff's termination, Plaintiff "maintains that she has done nothing
wrong," and she "gave no promise that she would stop these practices if she returned to work."
Dkt. No. 21-23 at 14. For that reason, the WCB's Chief of Adjudication—who does not normally
make recommendations regarding employee disciplinary proceedings—recommended Plaintiff's
termination due to Plaintiff's behavior at her June 3, 2015 interrogation. See Dkt. No. 21-25 at
¶ 18. In contrast, JC admitted culpability and came to a settlement agreement that reduced her
suspension from sixty days to ten days. See Dkt. No. 22 at ¶ 64.
In the end, the evidence that Plaintiff puts forth in order to raise an inference of
discrimination—Layaou's treatment of Plaintiff and the disparate treatment of JC—is not
particularly strong. But even if Plaintiff had established her prima facie case of discrimination,
Defendant has provided legitimate nondiscriminatory reasons for the adverse employment
actions, and Plaintiff has not shown those reasons to be pretextual.
2. Legitimate Nondiscriminatory Reason
On two different occasions, Plaintiff was caught violating laws and policies governing her
conduct in the workplace. First, she used WCB envelopes and postage to mail invoices and
hearing transcripts to Outside Parties, and apparently she did so regularly. Second, Plaintiff used
a WCB fax machine to transmit a thirty-four-page document for private business. In engaging in
that conduct, Plaintiff violated at least four different rules or laws prohibiting WCB employees
from using WCB supplies and equipment in outside business: New York Public Officers Law §
74(3)(d), the WCB Policy on Thefts in the Workplace, the WCB Policy on Verbatim Reporter
Work Standards, and the WCB Standards on Conflict of Interest and Outside Employment. As
Defendant has provided a legitimate nondiscriminatory reason for the adverse employment
actions, the burden shifts back to Plaintiff to show that Defendant's reason was a pretext for
To establish pretext and avoid summary judgment, a plaintiff must come forward with
evidence from which a reasonable jury could conclude that the nondiscriminatory reason offered
by the defendant is a pretext for discrimination. See Holcomb v. Iona College, 521 F.3d 130, 141
(2d Cir. 2008). A plaintiff "is not required to show that the employer's proffered reasons were
false or played no role in the employment decision, but only that they were not the only reasons
and that the prohibited factor was at least one of the 'motivating factors." See id. at 138 (quoting
Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203 (2d Cir. 1995)). At the pretext stage of the
burden-shifting analysis, "[c]onclusory and speculative allegations will not suffice to demonstrate
discriminatory intent." Joseph v. Owens & Minor Distribution, Inc., 5 F. Supp. 3d 295, 313
(E.D.N.Y. 2014) (quoting Henry v. N.Y. State, 842 F. Supp. 2d 530, 553 (S.D.N.Y. 2012)).
To show pretext, Plaintiff depends almost entirely upon the supposedly disparate
treatment of JC. See Dkt. No. 30 at 17-20; see also Graham, 230 F.3d at 43 ("A showing that
similarly situated employees belonging to a different racial group received more favorable
treatment can also serve as evidence that the employer's proffered legitimate, non-discriminatory
reason for the adverse job action was a pretext for racial discrimination"). However, for the
reasons stated above, the Court rejects that argument. Additionally, Plaintiff was terminated after
a ruling by an independent adjudicator, which "is highly probative of the absence of
discriminatory intent in that termination." Collins v. N.Y.C. Transit Auth., 305 F.3d 113, 119 (2d
Cir. 2002). Even when the record is viewed in the light most favorable to Plaintiff, no reasonable
jury could find that Defendant's asserted reasons for the adverse employment actions were merely
a pretext for discrimination. Therefore, Plaintiff's discrimination claim is dismissed.
Claims of retaliation for engaging in an activity protected conduct under Title VII are also
analyzed under the three-step, burden-shifting framework articulated in McDonnell Douglas. See
Dall v. St. Catherine of Siena Med. Ctr., 966 F. Supp. 2d 167, 191 (E.D.N.Y. 2013). Pursuant to
that framework, a plaintiff must first establish a prima facie case of retaliation. See id. Once a
plaintiff has established a prima facie case, the burden shifts to the defendant to “articulate a
legitimate nondiscriminatory reason for its actions.” Tomka v. Seiler Corp., 66 F.3d 1295, 1308
(2d Cir.1995). If the employer is successful at the second step, the plaintiff must establish that
but for the protected activity employer would not have taken the adverse action against the
plaintiff. Dall, 966 F. Supp. 2d at 191 (citing Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338,
To state a prima facie case of retaliation under Title VII, a plaintiff must show that: (1) she
was engaged in a protected activity by opposing a practice that is made unlawful by Title VII; (2)
her employer was aware of the protected activity; (3) she was subjected to adverse employment
action; and (4) there was a causal connection between the protected activity and the adverse
employment action. See Kelly v. Howard I. Shapiro & Assocs. Consulting Eng'rs, P.C., 716 F.33
10, 14 (2d Cir. 2013) (citing Lore v. City of Syracuse, 670 F.3d 127, 157 (2d Cir.2012)). Plaintiff
argues that she engaged in protected activity on two different occasions. First, during her June 3,
2015 interrogation, Plaintiff complained of racial discrimination. See Dkt. No. 30 at 22. Second,
on June 23, 2015, Plaintiff filed a complaint with NYSDHR. See id.
1. Statements at the June Interrogation
"Before an individual may bring a Title VII suit in federal court, the claims forming the
basis of such a suit must first be presented in a complaint to the EEOC or the equivalent state
agency." Williams v. N.Y.C. Hous. Auth., 458 F.3d 67, 69 (2d Cir. 2006) (quoting 42 U.S.C. §
2000e-5 (2000)). "In addition, the claimant must make the EEOC filing within 300 days of the
alleged discriminatory conduct and, before bringing suit, must receive a 'Notice of Right to Sue'
letter from the EEOC." Id. at 69 (citing Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d
683, 686 (2d Cir. 2001)).
"[T]he purpose of the notice provision, which is to encourage settlement of discrimination
disputes through conciliation and voluntary compliance, would be defeated if a complainant could
litigate a claim not previously presented to and investigated by the EEOC." Butts v. N.Y.C. Dep't
of Hous. Pres. & Dev., 990 F.2d 1397, 1401 (2d Cir. 1993), superceded by statute on other
grounds as stated in Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684 (2d Cir. 1998) (quoting
Miller v. Int'l Tel. & Tel., 755 F.2d 20, 26 (2d Cir. 1985)). "Although the exhaustion of
administrative remedies through filing with the EEOC is not a jurisdictional requirement, 'it
remains . . . an essential element of Title VII's statutory scheme . . . and one with which
defendants are entitled to insist that plaintiffs comply.'" Muhammad v. N.Y.C. Transit Auth., 450
F. Supp. 2d 198, 205 (E.D.N.Y. 2006) (quoting Francis v. City of New York, 235 F.3d 763, 768
(2d Cir. 2000)).
In this case, Plaintiff made accusations of racial discrimination during her June 3, 2015
interrogation.4 Plaintiff now argues that those statements were protected activity for the purposes
For example, when Plaintiff was asked why she used WCB envelopes to send out
invoices and transcripts to parties, she responded in part: "I kept doing it. Why did I keep doing
it? Because I have suffered harassment and abuse and discrimination from Linda Engle and the
Board since I've been working here." Dkt. No. 21-18 at 47.
of stating a prima facie claim for retaliation, but Plaintiff did not mention the statements or the
June 3, 2015 interrogation in her complaints to NYSDHR. See Dkt. No. 21-32. While "a district
court may 'hear Title VII claims that either are included in an EEOC charge or are based on
conduct subsequent to the EEOC charge which is "reasonably related" to that alleged in the
EEOC charge,'" Danials-Kirisits v. N.Y. State Office of Court Admin., No. 05-CV-800, 2013 WL
1755663, *5 (W.D.N.Y. Apr. 24, 2013) (quoting Butts, 990 F.2d at1401), a plaintiff has a "'duty
to include all relevant alleged discriminatory conduct when she file[s] the EEOC charge,'" id.
(quoting Townsend v. Exchange Ins. Co., 196 F. Supp. 2d 300, 313 (W.D.N.Y. 2002)).
A plaintiff may not rely in federal court on "additional specific instances of misconduct
that . . . occurred prior to the filing of [her EEOC] charges" but which were not alleged in those
charges. Id.; see also Lester v. M&M Knopf Auto Parts, No. 04-CV-850, 2006 WL 2806465, *7
(W.D.N.Y. Sept. 28, 2006) (“None of the other layoffs are referenced in the Charges, nor can they
be construed as ‘reasonably related’ to the January 22, 2004 layoff because they predate it”);
Samborski v. W. Valley Nuclear Servs. Co., Inc., No. 99-CV-213, 2002 WL 1477610, *5
(W.D.N.Y. June 25, 2002) (“Samborski may not rely on any alleged conduct that occurred before
January 5, 1999 other than [that] referenced in her EEOC charge”). Accordingly, the Court will
not consider conduct that occurred before Plaintiff's second NYSDHR complaint was filed on
August 26, 2015, unless the conduct was addressed in one of Plaintiff's NYSDHR complaints.
2. NYSDHR Complaint
On June 23, 2015, Plaintiff filed her first complaint with NYSDHR. Here, Plaintiff
satisfies the four elements of a prima facie retaliation claim: (1) she engaged in protected activity
by submitting a complaint to NYSDHR; (2) the WCB was aware of the activity; (3) she was
subsequently subject to adverse employment actions when she was suspended and eventually
terminated; and (4) she was suspended without pay on August 13, 2015, less than two months
after Plaintiff filed her complaint. See Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d
Cir. 2010) ("Though this Court has not drawn a bright line defining, for the purposes of a prima
facie case, the outer limits beyond which a temporal relationship is too attenuated to establish
causation, we have previously held that five months is not too long to find the causal
"Once the plaintiff has established a prima facie showing of retaliation, the burden shifts
to the employer to articulate some legitimate, non-retaliatory reason for the employment action."
Zaan Kwan v. Andalex Grp. LLC, 737 F.3d 834 (2d Cir. 2013). Here, Defendant provides
legitimate, nonretaliatory reasons for suspending and later terminating Plaintiff's employment.
First, Plaintiff violated at least four different rules or laws prohibiting WCB employees from
using WCB supplies and equipment in outside business. As a result, Plaintiff was issued a Notice
of Discipline and removed from calendar duties in late June 2015. See Dkt. No. 22 at ¶ 78. When
Plaintiff was caught using the fax machine for personal business in August 2015, she was
suspended. See id. at ¶ 89. Finally, after arbitration proceedings, Plaintiff was terminated on
March 8, 2016. See id. at ¶ 96.
"Under the McDonnell Douglas framework, after the defendant has articulated a nonretaliatory reason for the employment action, the presumption of retaliation arising from the
establishment of the prima facie case drops from the picture." Zann Kwan, 737 F.3d at 845. The
burden then shifts back to the plaintiff to come forward with evidence that the non-retaliatory
reason is a mere pretext for discrimination. Id. At this point, a plaintiff must show that the
protected activity was a "but for" cause of the employer's adverse action. See Vega v. Hempstead
Union Free Sch. Dist., 801 F.3d 72, 91 (2d Cir. 2015). "It is not enough that retaliation was a
'substantial' or 'motivating' factor in the employer's decision." Id. "A plaintiff may prove that
retaliation was a but-for cause of an adverse employment action by demonstrating weaknesses,
implausibilities, inconsistencies, or contradiction in the employer's proffered legitimate, nonretaliatory reasons for its action." Zann Kwan, 737 F.3d at 846. Here, Plaintiff has failed to
provide any such evidence undermining Defendant's legitimate non-retaliatory reasons. Viewing
the evidence in the light most favorable to Plaintiff, as the Court must at this stage, there is no
issue of fact as to whether the legitimate, non-discriminatory reasons for the adverse actions were
a pretext for discrimination. Therefore, Plaintiff's retaliation claim is dismissed.
Hostile Work Environment and New York Human Rights Law
Defendant moved for summary judgment as to Plaintiff's hostile work environment claim
and all of Plaintiff's state law claims. "A court 'may, and generally will, deem a claim abandoned
when a plaintiff fails to respond to a defendant's arguments that the claim should be dismissed.'"
Martinez v. City of New York, No. 11-CV-7461, 2012 WL 6062551, *1 (S.D.N.Y. Dec. 6, 2012)
(quoting Lipton v. County of Orange, 315 F. Supp. 2d 434, 446 (S.D.N.Y. 2004)). When a
defendant files a summary judgment motion, "a partial response arguing that summary judgment
should be denied as to some claims while not mentioning others may be deemed an abandonment
of the unmentioned claims." Jackson v. Fed. Express, 766 F.3d 189, 195 (2d Cir. 2014). Since
Plaintiff's opposition did not mention her hostile work environment or state law claims, the Court
deems those claims abandoned.
After carefully reviewing the entire record in this matter, the parties' submissions and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Defendant's motion for summary judgment (Dkt. No. 21) is GRANTED;
and the Court further
ORDERS that the Clerk of the Court shall enter judgment dismissing this action; and the
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: March 6, 2018
Albany, New York
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