Royal v. Shulkin
Filing
7
DECISION AND ORDER that Defendant's motion for summary judgment (Dkt. No. 59) filed in the Lead Action 1:17-CV-1251 (GTS/DFH) is GRANTED. Plaintiff's hostile work environment, discriminatory termination, and retaliation claims are DISMISSED with prejudice. Plaintiff's Amended Complaint (Dkt. No. 11) is DISMISSED. Signed by Chief Judge Glenn T. Suddaby on 3/19/2021. (Copy served upon plaintiff via regular and certified mail)(sal)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
___________________________________________
ANTHONY ROYAL,
Plaintiff,
v.
1:17-CV-1251
(GTS/CFH)
ROBERT WILKE, Secretary of Veteran Affairs,
Defendant.
___________________________________________
APPEARANCES:
OF COUNSEL:
ANTHONY ROYAL
Pro Se Plaintiff
99 Lake Drive
Newburgh, NY 12550
HON. ANTOINETTE T. BACON
United States Attorney for the N.D.N.Y.
Counsel for Defendant
James T. Foley U.S. Courthouse
445 Broadway, Room 218
Albany, NY 12207-2924
KAREN FOLSTER LESPERANCE, ESQ.
Assistant U.S. Attorney
GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this employment discrimination and retaliation action filed
by Anthony Royal (“Plaintiff”) against Secretary of Veteran Affairs Robert Wilke
(“Defendant”), is Defendant’s motion for summary judgment. (Dkt. No. 59.) For the reasons set
forth below, Defendant’s motion is granted.
I.
RELEVANT BACKGROUND
A.
Plaintiff's Amended Complaint
Generally, in his Amended Complaint, Plaintiff alleges discrimination by his employer
based on his race or color, and retaliation based on his complaint of that discrimination, in
violation of Title VII of the Civil Rights Act of 1964. (Dkt. No. 11 [Pl.’s Am. Compl.].) More
specifically, Plaintiff alleges that he was unlawfully retaliated against because his employment
was terminated after he complained to an Equal Employment Opportunity (“EEO”) officer about
the way he was treated in the workplace. (Id. at 3.)
In an appended affidavit, Plaintiff alleges the following relevant facts: (a) he is AfricanAmerican; (b) he has been diagnosed with posttraumatic stress disorder (“PTSD”) and
depression, and suffered a workplace injury of his back while employed during the relevant time;
(c) after being transferred to a position as a Medical Support Assistant (“MSA”), he was
harassed by a coworker, who made fun of the way he spoke and would engage in “racially
offensive conversations with other co-workers” while Plaintiff was present, including about his
admiration for Germany, how he wished he could have lived in Germany when Adolf Hitler was
in charge, how much he enjoyed the book Mein Kampf, and about white supremacy; (d) this
harassment caused him to suffer an anxiety attack in early June 2015 that required him to call a
mental health crisis hotline and go to the emergency room for medical care; (e) eight days after
returning to work after that incident, a chair he was sitting in collapsed, resulting in the need for
medical care for back pain and further absences from work; (f) on July 22, 2015, he informed the
employee health nurse that he was still unable to work due to back pain, but was merely told to
return to work; (g) after this meeting with the employee health nurse, he called the EEO officer
for his workplace and reported that he felt he was being discriminated against because of his race
and his mental illness; (h) Plaintiff continued to be unable to report to work, but his supervisor
Ms. Heinmiller would not accept his information regarding his condition for the purposes of
applying paid leave to his absences; and (i) on August 21, 2015, he received a letter that
2
terminated his employment effective that date due to “unacceptable performance, conduct, and
attendance.” (Id. at 6-13.)
Based on these factual allegations, Plaintiff has asserted two claims: (1) a claim of
discrimination based on racially harassing conduct by a coworker and termination of his
employment, and (2) a claim of retaliation for making a complaint about that harassment and
other discriminatory workplace conduct.
B.
Undisputed Material Facts on Defendant’s Motion for Summary Judgment
Under N.D.N.Y. Local Rule 56.1 (formerly Local Rule 7.1[a][3]), a party opposing
summary judgment must file a response to the moving party’s Statement of Material Facts that
“shall mirror the movant’s Statement of Material Facts by admitting and/or denying each of the
movant’s assertions in a short and concise statement, in matching numbered paragraphs,”
supported by “a specific citation to the record where the factual issue arises.” L.R. 56.1(b).
Here, Plaintiff provided denials of some of Defendant’s asserted facts, but provided no
indication of his response to other asserted facts. (Dkt. No. 63, at 3-6 [Pl.’s Rule 56.1 Resp.].)
Because Plaintiff specifically denied certain facts and not others, the Court deems that all facts
not denied or challenged have been admitted. See L.R. 56.1(b) (“The Court may deem admitted
any properly supported facts set forth in the Statement of Material Facts that the opposing party
does not specifically controvert.”). The Court also notes that Plaintiff has not provided citations
to the record related to his denials as required by the Local Rules. However, out of special
solicitude to Plaintiff due to his pro se status and the clear indication that he has made efforts to
comply with the requirements, the Court will consider whether any of those denials are
supported by Plaintiff’s affidavit that was appended to the Amended Complaint (and which has
also been submitted as evidence by Defendant with his motion) or other submitted evidence.
3
Unless otherwise noted, the following facts were asserted and supported with accurate
record citations by Defendant in his Statement of Material Facts and either admitted by Plaintiff
(expressly or by virtue of his failure to deny the fact) or denied without appropriate evidentiary
support. (Compare Dkt. No. 59, Attach. 3 [Def.’s Rule 56.1 Statement] with Dkt. No. 63 [Pl.’s
Rule 56.1 Resp.].)
1.
Plaintiff is an African-American male and a service-disabled veteran.
2.
Plaintiff had previously been employed by Loyola Recovery Services (“Loyola”),
but became unemployed when that program closed as of December 31, 2014.1
3.
In January 2015, Plaintiff started work as a VA employee, working in a food
service position in the cafeteria at Samuel S. Stratton Veterans Affairs Medical Center (“Albany
VAMC”).
4.
He continued to look for another position within the VA, however, and
periodically stopped by the Behavioral Veterans Affairs Health Care Line (“BVAC”) unit to
inquire whether there were any open positions.
5.
In early 2015, a position as a Medical Support Assistant (“MSA”) in the BVAC
unit became available, and Plaintiff applied for it.
6.
Deborah Heinmiller is the Supervisory Program Specialist in the BVAC unit, and
was responsible for the hiring and supervision of MSAs in that unit.
7.
Human Resources provided Ms. Heinmiller with a list of candidates who were
1
The evidence to which Defendant cites as support for asserted facts numbered three and
four are not supported by the cited evidence, because Defendant does not appear to have
included the cited pages from Plaintiff’s deposition in the submission with his motion.
However, some of these asserted facts are supported by the declaration of Deborah Heinmiller.
(Dkt. No. 59, Attach. 4, at ¶3 [Heinmiller Decl.].) The Court has therefore revised these facts to
reflect what is supported by the provided evidence.
4
both qualified for the open MSA position and had a veteran’s preference.
8.
Plaintiff and two other candidates were on the list. Ms. Heinmiller was familiar
with all three of the candidates on that list because she had previously interviewed the other two
candidates for past vacancies, and she knew Plaintiff from his employment with Loyola.
9.
Ms. Heinmiller spoke with Plaintiff’s previous supervisor at Loyola, who
provided a positive reference.
10.
Ms. Heinmiller elected not to conduct interviews, and instead offered Plaintiff the
MSA position.
11.
Plaintiff commenced employment as an MSA with the BVAC unit on March 8,
2015, which employment was subject to a one-year probationary period.
12.
MSAs are responsible for scheduling appointments, checking patients in and out
of the clinic, and fielding telephone calls in a very busy mental health clinic.
13.
For the first several weeks of Plaintiff’s employment, Ms. Heinmiller sat with
him
every day to teach and train him how to perform the necessary tasks required for the position.2
14.
Ms. Heinmiller also provided Plaintiff with a binder that contained a “cheat
sheet”
for each task he was expected to perform, and encouraged him to ask her or other MSAs if he
had any questions or problems.
15.
However, Plaintiff made frequent mistakes, particularly with patient scheduling.
2
Plaintiff denies this asserted fact, arguing that he was trained by another MSA, Shannon
Gorman, who trained him incorrectly. (Dkt. No. 63, at 3 [Pl.’s Rule 56.1 Resp.].) However,
Plaintiff cites no evidence to support this denial, and his affidavit does not contradict the asserted
fact. (Dkt. No. 11 [Pl.’s Aff.].) This asserted fact is therefore deemed admitted.
5
16.
Ms. Heinmiller would explain the mistakes to him, explain why they were not
correct, and review how to complete the tasks correctly.
17.
However, Plaintiff continued to make the same mistakes after these instructions,
and some concerns also arose over how Plaintiff interacted with patients on the telephone.3
18.
Ms. Heinmiller gave Plaintiff additional training on how to interact with patients,
and provided him with scripts he could use when speaking to patients; he did not, however, use
those scripts.
19.
After correcting Plaintiff multiple times regarding the same mistakes, Ms.
Heinmiller began to make a record of her concerns with his performance.
20.
The first time Ms. Heinmiller documented such a concern was May 22, 2015. On
that day, she met with Plaintiff to go over some errors he was making when scheduling patients.
21.
Ms. Heinmiller explained what he had done incorrectly and what he should have
done. She also asked him if there was anything she could do to help him perform his job more
successfully, but he declined additional help.
22.
Ms. Heinmiller documented this meeting in a VA “Report of Contact” form, and
attached a print-out of the incorrect scheduling to that Report.
23.
On May 27, 2015, Ms. Heinmiller met with Plaintiff again.
24.
Plaintiff was continuing to make scheduling errors, such as scheduling for the
3
Plaintiff denies this asserted fact, arguing Ms. Heinmiller never told him that there were
problems with how he interacted on the phone, but rather that another MSA made racist
comments about the way he spoke on the phone. (Dkt. No. 63, at ¶ 20 [Pl.’s Rule 56.1 Resp.].)
However, Plaintiff cites no evidence to support this denial, and his affidavit does not contradict
the asserted fact. (Dkt. No. 11 [Pl.’s Aff.].) This asserted fact is therefore deemed admitted.
6
wrong clinic, wrong date, wrong time, or wrong patient.4
25.
Ms. Heinmiller went over each instance in which he had made a scheduling error
and explained what was incorrect. She also again asked whether there was anything she could
do to help him be more successful, but he again declined.
26.
Ms. Heinmiller documented this conversation in another Report of Contact.
27.
On or about May 28, 2015, Plaintiff did not report to work and did not call to
notify anyone at the BVAC that he would not be in.5
28.
Ms. Heinmiller recorded this time as absent without leave (“AWOL”).
29.
The next workday, Plaintiff met with Ms. Heinmiller, Behavioral Health Program
Manager Paul Postiglione, and personnel health nurse practitioner Susan Burkhart.
30.
In this meeting, Plaintiff was visibly upset and reported that he was experiencing
a mental health crisis as a result of his PTSD and that he needed help.
31.
Plaintiff indicated that he did not want to be seen by a provider at Albany VAMC
because he did not want to seek care where he worked.
32.
Mr. Postiglione asked Plaintiff whether his PTSD was combat-related or non-
4
Plaintiff denies this asserted fact, arguing that Ms. Heinmiller inaccurately assumed he
was making mistakes and, on one unspecified occasion, she accused Plaintiff of overbooking a
doctor when she herself had made the mistake of overbooking. (Dkt. No. 63, at ¶ 29 [Pl.’s Rule
56.1 Resp.].) However, Plaintiff cites no evidence to support this denial, and his affidavit does
not contradict the asserted fact. (Dkt. No. 11 [Pl.’s Aff.].) This asserted fact is therefore deemed
admitted.
5
Plaintiff does not deny that he both failed to report to work that day or that he failed to
call anyone at the BVAC about his absence that day; rather, he adds facts about having called the
crisis hotline and speaking to a Dr. Lombardi, who instructed him to go to the emergency room
at the Albany VAMC after 5pm so that he would not have to see his coworkers while seeking
medical attention. (Dkt. No. 63, at ¶ 33 [Pl.’s Rule 56.1 Resp.].) Plaintiff’s affidavit appears to
dispute that he was absent for two days without contacting his employer, and asserts that he had
a meeting that included Ms. Heinmiller “[t]he next day.” (Dkt. No. 11, at ¶¶ 9-10 [Pl.’s Aff.].)
As a result, the Court has generally adopted Defendant’s asserted fact, but has omitted his
assertion that Plaintiff was absent without contact on May 28, and May 29, 2015.
7
combat-related, because the VA operates the Albany Vet Center, which treats veterans with
combat-related PTSD.
33.
Plaintiff indicated that his PTSD was not combat-related, but Mr. Postiglione
called the Albany Vet Center anyway and asked whether they would be willing to see Plaintiff
given the circumstances.
34.
The Albany Vet Center agreed to see Plaintiff and an appointment was scheduled
for the following day.
35.
Plaintiff left for the rest of the day and agreed that he would contact Ms.
Heinmiller with an update after his appointment the next day.
36.
During this meeting, Plaintiff also provided documentation that he had been seen
at the Albany VAMC Emergency Department for treatment of symptoms associated with his
PTSD on May 28, 2015, and he was medically excused from work through June 1, 2015.
37.
Based on this documentation, Ms. Heinmiller changed the AWOL designation to
sick leave for the days Plaintiff had been absent.
38.
Ms. Heinmiller informed Plaintiff that it was important that he communicate with
her if he was unable to come to work.
39.
Ms. Heinmiller reviewed the process for requesting leave with him, asked him to
repeat it back to her to make sure that he understood, and also wrote the process down for him.6
40.
Ms. Heinmiller documented this discussion in a Report of Contact, as did Mr.
Postiglione.
6
Plaintiff denies this asserted fact, stating that he does not recall Ms. Heinmiller asking
him to repeat the information back or that she wrote anything down for him. (Dkt. No. 63, at ¶
45 [Pl.’s Rule 56.1 Resp.].) However, setting aside the point of law that failing to recall a fact
cannot constitute a dispute of that fact for purposes of a motion for summary judgment, Plaintiff
cites no evidence to support this denial, and his affidavit does not contradict the asserted fact.
(Dkt. No. 11 [Pl.’s Aff.].) This asserted fact is therefore deemed admitted.
8
41.
Plaintiff had indicated that many of the mistakes he had been making at work
were due to the exacerbation of his PTSD, so Ms. Heinmiller provided him with the VA’s
Reasonable Accommodation handbook and the paperwork to request a reasonable
accommodation if he needed one.7 Ms. Heinmiller amended the Report of Contact from May 27,
2015, to reflect Plaintiff’s reports about his PTSD.
42.
Plaintiff never requested a reasonable accommodation.
43.
Plaintiff did not contact Ms. Heinmiller after his appointment with the Albany
Vet
Center and did not report to work for the remainder of the week.8
44.
On June 4, 2015, Ms. Heinmiller called Plaintiff because she had not heard from
him and he had been no call/no show to work each day. She left Plaintiff a message, informing
him that he was currently AWOL and would remain in that status until she heard from him. She
also reminded him that she required a doctor’s note if he was going to be out of work for an
extended period of time.
45.
Plaintiff returned Ms. Heinmiller’s call and indicated that he would be out of
work until June 8, 2015.
46.
Ms. Heinmiller reminded him that he was supposed to have called her earlier in
the week and informed him that she would need documentation for his medical absence.
7
Plaintiff denies this asserted fact, stating that he never told Ms. Heinmiller that he made
mistakes because of his PTSD. (Dkt. No. 63, at ¶ 47 [Pl.’s Rule 56.1 Resp.].) However,
Plaintiff cites no evidence to support this denial, and his affidavit does not contradict the asserted
fact. (Dkt. No. 11 [Pl.’s Aff.].) This asserted fact is therefore deemed admitted.
8
Plaintiff states in his response that Ms. Heinmiller was aware of his need to be absent
because the Albany Vet Center sent her notes informing her of his absence. However, Plaintiff
does not adduce evidence that Ms. Heinmiller received and reviewed the notes, and he does not
deny that he personally failed to contact Ms. Heinmiller. (Dkt. No. 63, at ¶ 51 [Pl.’s Rule 56.1
Resp.].) This fact is therefore deemed admitted.
9
47.
Ms. Heinmiller again reviewed the policy and procedures for calling out if he was
going to be absent from work.
48.
On June 5, 2015, Plaintiff provided a note from the Albany Vet Center from the
same date that indicated he had been seen that day and that his absence from work the week of
June 1 to June 5 was medically warranted.
49.
After receiving that note, Ms. Heinmiller changed Plaintiff’s status from AWOL
to sick and/or annual leave. She informed him that any future no call/no show days would be
charged as AWOL.
50.
On June 17, 2015, Shannon Gorman, another MSA, informed Ms. Heinmiller of
an incident in which Plaintiff asked her how to mark a patient as a “no show.”
51.
Plaintiff had been trained on this previously, but Ms. Gorman again explained to
him how to do so. In the course of her explanation, Ms. Gorman realized that the patient in
question was currently an inpatient at Albany VAMC, and she told Plaintiff that the patient
should not be marked as a no-show, but rather the appointment should be cancelled because the
patient was hospitalized.
52.
Plaintiff argued with Ms. Gorman and refused to follow her instructions, marking
the patient as a no-show.9
53.
Ms. Heinmiller instructed Ms. Gorman to document the interaction, which she
did.
9
Plaintiff does not deny that he asked Ms. Gorman for assistance, but rather asserts that
the answer she gave him was wrong. (Dkt. No. 63, at ¶ 59 [Pl.’s Rule 56.1 Resp.].) However,
Plaintiff cites no evidence to support this additional assertion (or any denial of the asserted fact),
and his affidavit does not contradict the asserted fact. (Dkt. No. 11 [Pl.’s Aff.].) This asserted
fact is therefore deemed admitted.
10
54.
On July 15, 2015, Plaintiff did not appear for work.
55.
He made a brief call to another MSA to say that he was sick and would not be in
that day, despite the fact that he had recently been reminded that he needed to call Ms.
Heinmiller to let her know how long he was going to be out and what type of leave he was using
if he needed to be absent from work.10
56.
The next day, on July 16, 2015, Plaintiff reported for work. While at work,
Plaintiff claims that his pneumatic desk chair broke, collapsing hard in a manner that caused
pain.11
57.
Plaintiff went to the personnel health clinic and the nurse practitioner sent him
home for the rest of the day.12
58.
The next morning, Plaintiff went to the Emergency Room at Albany Medical
Center complaining of continued back pain.
59.
X-rays and a CT-scan were performed and showed normal findings other than
degenerative changes in his spine.
60.
Plaintiff was provided with a note from Albany Medical Center that excused him
from work between July 17 and July 20, with a return-to-work date of July 20, 2015.
10
Plaintiff denies this asserted fact, arguing that he called before his shift began and told
the MSA who answered the phone that he would not be in that day, which is what all the MSAs
did if Ms. Heinmiller was not available. (Dkt. No. 63, at ¶ 63 [Pl.’s Rule 56.1 Resp.].)
However, Plaintiff does not deny that he did not speak with Ms. Heinmiller at that time or that
he failed to provide the relevant information. Nor does his affidavit address this incident. (Dkt.
No. 11 [Pl.’s Aff.].) This asserted fact is therefore deemed admitted.
11
The Court has altered the asserted fact to more closely accord with the substance of the
evidence cited by Defendant. Plaintiff’s response to this asserted fact merely adds additional
facts, but does not deny the asserted fact itself, which is supported by the cited evidence,
including Plaintiff’s own affidavit and deposition testimony. (Dkt. No. 63, at ¶ 64 [Pl.’s Rule
56.1 Resp.].) This fact is therefore deemed admitted.
12
Again, Plaintiff does not deny the asserted fact but merely adds additional facts. (Dkt.
No. 63, at ¶ 65 [Pl.’s Rule 56.1 Resp.].) This fact is therefore deemed admitted.
11
61.
On July 20, 2015, Plaintiff went to the Emergency Department at the Albany
VAMC complaining of continued back pain.13
62.
He was excused from work for an additional two days, with a return-to-work date
of July 22, 2015.
63.
Plaintiff did not call Ms. Heinmiller before going to the Emergency Department,
nor did he inform her that he had been excused for an additional two days. Plaintiff went to the
worker’s compensation office and the personnel health office at Albany VAMC after leaving the
Emergency Department, but did not go to the BVAC to update his supervisor. Ms. Heinmiller
did not know where Plaintiff was until approximately noon that day, when she was contacted by
the worker’s compensation office.14
64.
Plaintiff returned to the VAMC Emergency Department on July 22, 2015. The
doctor at the VAMC Emergency Department referred him back to the personnel health office.
According to Plaintiff, the personnel health nurse told him that he would need to return to work
or request leave time.15
65.
After Plaintiff left the personnel nurse’s office, he immediately called the EEO
officer from the first floor lobby of the hospital.16
13
Plaintiff’s response to this asserted fact is non-responsive and simply adds unrelated facts
that do not undermine the asserted fact. (Dkt. No. 63, at ¶ 69 [Pl.’s Rule 56.1 Resp.].) This
asserted fact is therefore deemed admitted.
14
Plaintiff again adds facts tangential to the asserted fact, but does not deny the asserted
fact. (Dkt. No. 63, at ¶ 71 [Pl.’s Rule 56.1 Resp.].) This asserted fact is therefore deemed
admitted.
15
Plaintiff again adds facts tangential to the asserted fact, but does not deny the asserted
fact. (Dkt. No. 63, at ¶ 72 [Pl.’s Rule 56.1 Resp.].) This asserted fact, in a slightly amended
form that is more consistent with the cited evidence, is therefore deemed admitted.
16
Plaintiff again adds facts tangential to the asserted fact, but does not deny the asserted
fact. (Dkt. No. 63, at ¶ 75 [Pl.’s Rule 56.1 Resp.].) This asserted fact, in a slightly amended
form that is more consistent with the cited evidence, is therefore deemed admitted.
12
66.
The EEO officer said that he would attempt to schedule a mediation.17
67.
Plaintiff did not go to his workplace while he was at Albany VAMC on July 22,
2015, and did not otherwise communicate with Ms. Heinmiller. Ms. Heinmiller was aware that
he had been medically cleared to return to work on July 22, but he did not show or call. Ms.
Heinmiller thus marked him AWOL for that day.
68.
At this point, based on Plaintiff’s excessive absences, failure to follow leave
protocols, the difficulties she had with training him, and his unsatisfactory performance, Ms.
Heinmiller decided to submit a recommendation to Human Resources that Plaintiff’s
probationary employment be terminated.18
69.
Ms. Heinmiller compiled an evidence file containing all of the documentation
regarding Plaintiff’s performance and attendance issues, and she completed a “Douglas Factors
Checklist,” which was required to be included with the recommendation.19
70.
Ms. Heinmiller’s supervisor, Glenn Gilbert, signed off on the Douglas Factors
Checklist the same day, and Ms. Heinmiller provided the evidence file to Human Resources.
71.
Ms. Heinmiller was unaware at that time, or at any time before Plaintiff’s
termination, that Plaintiff had contacted the EEO office or made any complaint of
discrimination.
72.
Plaintiff was no call/no show on July 23, 2015.
73.
On July 24, 2015, Plaintiff left a voicemail for Ms. Heinmiller stating that he had
17
Plaintiff again adds facts tangential to the asserted fact, but does not deny that fact. (Dkt.
No. 63, at ¶ 76 [Pl.’s Rule 56.1 Resp.].) This asserted fact is therefore deemed admitted.
18
Plaintiff’s response to this asserted fact is non-responsive to the asserted fact itself. (Dkt.
No. 63, at ¶ 78 [Pl.’s Rule 56.1 Resp..].) This asserted fact is therefore deemed admitted.
19
Plaintiff’s response to this asserted fact is non-responsive to the asserted fact itself. (Dkt.
No. 63, at ¶ 78 [Pl.’s Rule 56.1 Resp..].) This asserted fact is therefore deemed admitted.
13
a doctor’s appointment scheduled for August 5, 2015, but he did not provide any other
information, such as what type of leave he was using, and he did not provide any medical
documentation related to his continued absence.
74.
Plaintiff continued to be absent at work without providing any medical
documentation until August 5, 2015; although he left voicemails on July 27, July 31, August 3,
and August 4, he was not following leave procedures because he failed to indicate what type of
leave he was requesting and failed to leave a contact number.20
75.
On August 5, 2015, Plaintiff provided a note from an orthopedist, indicating that
he had been seen that day and was to be out of work pending an MRI. The note did not state a
diagnosis, prognosis, or anticipated return-to-work date, and also did not indicate when the MRI
was to be performed.
76.
Ms. Heinmiller called Plaintiff and explained the deficiencies in the medical
documentation.21
77.
Plaintiff indicated that he would be speaking to an attorney and hung up the
phone.22
78.
Ms. Heinmiller had several more conversations with Plaintiff regarding his lack
of
20
Plaintiff is correct that the cited evidence reflects that he called Ms. Heinmiller on certain
dates during the period he was absent. As a result, the Court has amended the asserted fact to
reflect the extent of Plaintiff’s contact with Ms. Heinmiller during this time, as substantiated by
the evidence relied on by Defendant. However, Plaintiff does not deny that he failed to submit
medical evidence until August 5, 2015, and the asserted fact is therefore deemed admitted.
21
Plaintiff again adds facts tangential to the asserted fact, but does not deny that fact. (Dkt.
No. 63, at ¶ 87 [Pl.’s Rule 56.1 Resp.].) This asserted fact is therefore deemed admitted.
22
Plaintiff denies the asserted fact, but he cites no evidence to support this denial, and his
affidavit does not contradict the asserted fact. (Dkt. No. 11 [Pl.’s Aff.].) This asserted fact is
therefore deemed admitted.
14
medical documentation from his absences between July 22, 2015, and August 5, 2015, and for
his continued absence after August 5, 2015.
79.
On August 11, 2015, Plaintiff provided another note from his orthopedist stating
he had been out of work since July 23, 2015, and would remain out of work pending an MRI and
follow-up appointment. This note did not contain any information about a specific diagnosis,
prognosis, or indication of how long Plaintiff would remain out of work.23
80.
On or about August 20, 2015, Human Resources approved Ms. Heinmiller’s
recommendation to terminate Plaintiff’s probationary employment. He had not yet returned to
work nor had he provided further medical documentation.
81.
The Human Resources office sent Plaintiff a letter dated August 21, 2015,
notifying him that his employment was terminated effective at midnight on August 21, 2015.24
C.
Parties’ Briefing on Defendant’s Motion for Summary Judgment
1.
Defendant’s Memorandum of Law
Generally, in his memorandum of law, Defendant makes three arguments. (Dkt. No. 59,
Attach. 2, at 12-20 [Def.’s Mem. of Law].) First, Defendant argues that Plaintiff has not
sufficiently established the existence of a hostile work environment. (Id. at 12-14.) More
specifically, Defendant argues that the few allegations of stray comments by a non-supervisory
coworker about Germany, Hitler, white supremacy, and the way Plaintiff speaks were not
sufficiently pervasive as to alter the terms and conditions of his employment, and were
nonetheless generally not even allegedly directed at or about him (other than the comments
23
The Court has slightly altered this asserted fact because, although the physician’s note
does not contain a specific diagnosis, it does indicate that Plaintiff’s continued absence was due
to “ongoing back pain and radiating leg pain.” (Dkt. No. 59, Attach. 28, at 2.)
24
Plaintiff’s response to this asserted fact is essentially legal argument and does not
contradict the asserted fact with citation to any evidence. (Dkt. No. 63, at ¶ 92 [Pl.’s Rule 56.1
Resp.].) This asserted fact is therefore deemed admitted.
15
about the way he speaks). (Id.) Defendant further argues that he cannot be held liable for any
conduct by a non-supervisory coworker because there is no evidence that any supervisor was
aware of that coworker’s offensive remarks, and no evidence that a supervisor engaged in any
harassing conduct. (Id.)
Second, Defendant argues that he is entitled to summary judgment on Plaintiff’s
discrimination claim because there is sufficient evidence that Defendant had legitimate nondiscriminatory reasons for terminating Plaintiff’s employment during the probationary period,
including Plaintiff’s frequent mistakes in performing his job despite multiple trainings and
reminders and his frequent absences from work without providing appropriate notice or
information. (Id. at 15-18.) Defendant argues that there is no evidence that these reasons were a
pretext for discrimination based on Plaintiff’s race or disability, particularly given that Plaintiff
has not provided any concrete examples of conduct or statements to support his subjective belief
that his coworker and supervisor had discriminatory intent, and he has not shown any way in
which he was treated less favorably than similarly situated persons of another race or disability
status. (Id.) Defendant also argues that there is a reasonable inference that Plaintiff’s
termination was not based on an improper motive given that the same supervisor who
recommended his termination also hired him initially. (Id.)
Third, Defendant argues that there is insufficient evidence to support Plaintiff’s
retaliation claim given that the evidence shows that there were non-retaliatory reasons for that
termination and that his supervisor was unaware about his EEO complaint at the time he was
terminated. (Id. at 19-20.)
2.
Plaintiff’s Opposition Memorandum of Law
16
Generally, in his opposition memorandum of law, Plaintiff appears to argue that the fact
that his employment was terminated 30 days after he made a complaint to the EEO officer
indicates that the termination was the result of retaliation. (Dkt. No. 61, at 1 [Pl.’s Opp’n Mem.
of Law].) He also argues that his work environment was discriminatory and/or hostile based on
the fact that the personnel health nurse unreasonably felt like Plaintiff was threatening her, his
coworker criticized the way he spoke and made comments “almost every day” about Germany,
white supremacy, and Hitler in the workplace, and he was excluded from meetings that Ms.
Heinmiller had with other MSAs, to the point where he had to call a veteran’s suicide crisis
hotline to cope with the stress. (Id. at 1-3.)
3.
Defendant’s Reply Memorandum of Law
Generally, in his reply memorandum of law, Defendant argues that the temporal
proximity between Plaintiff’s EEO complaint and his termination is not sufficient to establish his
claim because he has not provided any evidence to rebut Ms. Heinmiller’s testimony that she
was unaware that Plaintiff had made such a complaint when she recommended his termination.
(Dkt. No. 65, at 1 [Def.’s Reply Mem. of Law].) Defendant further argues that Plaintiff has
admitted that he made mistakes and had frequent absences from work, and that he has not
provided any evidence of a coworker of another race or disability status who engaged in similar
conduct who was not terminated. (Id. at 1-2.) Finally, Defendant argues that Plaintiff has not
provided any evidence to show that the conduct in his workplace was sufficiently pervasive to
constitute a hostile work environment or that his supervisors were aware of the conduct
underlying that claim. (Id. at 2.)
II.
LEGAL STANDARD GOVERNING A MOTION FOR SUMMARY JUDGMENT
17
Under Fed. R. Civ. P. 56, summary judgment is warranted if "the movant shows that
there is no genuine dispute as to any material fact and that the movant is entitled to a judgment
as a matter of law." Fed. R. Civ. P. 56(a). A dispute of fact is "genuine" if "the [record]
evidence is such that a reasonable jury could return a verdict for the [non-movant]." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).25 As for the materiality requirement, a dispute of
fact is "material" if it "might affect the outcome of the suit under the governing law . . . . Factual
disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248.
In determining whether a genuine issue of material fact exists, the Court must resolve all
ambiguities and draw all reasonable inferences against the movant. Anderson, 477 U.S. at 255.
In addition, "[the movant] bears the initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of the . . . [record] which it believes
demonstrate[s] the absence of any genuine issue of material fact." Celotex v. Catrett, 477 U.S.
317, 323-24 (1986). However, when the movant has met its initial burden, the non-movant must
come forward with specific facts showing a genuine issue of material fact for trial. Fed. R. Civ.
P. 56(a), (c), (e).26
Implied in the above-stated burden-shifting standard is the fact that, where a non-movant
willfully fails to respond to a motion for summary judgment, a district court has no duty to
perform an independent review of the record to find proof of a factual dispute–even if that non25
As a result, “[c]onclusory allegations, conjecture and speculation . . . are insufficient to
create a genuine issue of fact.” Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) [citation
omitted]. As the Supreme Court has explained, “[The non-movant] must do more than simply
show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986).
26
Among other things, Local Rule 7.1(a)(3) requires that the non-movant file a response to
the movant's Statement of Material Facts, which admits or denies each of the movant's factual
assertions in matching number paragraphs, and supports any denials with a specific citation to
the record where the factual issue arises. N.D.N.Y. L. R. 7.1(a)(3).
18
movant is proceeding pro se.255 (This is because the Court extends special solicitude to the pro
se litigant by ensuring that he or she has received notice of the consequences of failing to
properly respond to the motion for summary judgment.).27 As has often been recognized by both
the Supreme Court and Second Circuit, even pro se litigant must obey a district court’s
procedural rules.28
Of course, when a non-movant willfully fails to respond to a motion for summary
judgment, "[t]he fact that there has been no [such] response . . . does not . . . [by itself] mean that
the motion is to be granted automatically." Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996).
Rather, as indicated above, the Court must assure itself that, based on the undisputed material
facts, the law indeed warrants judgment for the movant. Champion, 76 F.3d at 486; Allen v.
Comprehensive Analytical Group, Inc., 140 F. Supp.2d 229, 232 (N.D.N.Y. 2001) (Scullin, C.J.);
N.D.N.Y. L.R. 7.1(b)(3). What the non-movant's failure to respond to the motion does is lighten
the movant's burden.
For these reasons, this Court has often enforced Local Rule 56.1 by deeming facts set
forth in a movant's statement of material facts to be admitted, where (1) those facts are supported
by evidence in the record, and (2) the non-movant has willfully failed to properly respond to that
statement29–even where the non-movant was proceeding pro se.30
5
27
Cusamano v. Sobek, 604 F. Supp. 2d 416, 426 & n.2 (N.D.N.Y. 209) (Suddaby, J.) (citing
cases).
28
Cusamano, 604 F. Supp. 2d at 426-27 & n.4 (citing cases).
29
Among other things, Local Rule 56.1(b) requires that the non-movant file a response to
the movant's Statement of Material Facts, which admits or denies each of the movant's factual
assertions in matching numbered paragraphs, and supports any denials with a specific citation to
the record where the factual issue arises. N.D.N.Y. L. R. 56.1(b).
30
Cusamano, 604 F. Supp. 2d at 427 & n.6 (citing cases).
19
Similarly, in this District, where a non-movant has willfully failed to respond to a
movant’s properly filed and facially meritorious memorandum of law, the non-movant is deemed
to have “consented” to the legal arguments contained in that memorandum of law under Local
Rule 7.1(a)(3).31 Stated another way, when a non-movant fails to oppose a legal argument
asserted by a movant, the movant may succeed on the argument by showing that the argument
possess facial merit, which has appropriately been characterized as a “modest” burden. See
N.D.N.Y. L.R. 7.1(a)(3) (“Where a properly filed motion is unopposed and the Court determined
that the moving party has met its burden to demonstrate entitlement to the relief requested
therein . . . .”); Rusyniak v. Gensini, 07-CV-0279, 2009 WL 3672105, at *1, n.1 (N.D.N.Y. Oct.
30, 2009) (Suddaby, J.) (collecting cases); Este-Green v. Astrue, 09-CV-0722, 2009 WL
2473509, at *2 & n.3 (N.D.N.Y. Aug. 7, 2009) (Suddaby, J.) (collecting cases).
III.
ANALYSIS
A.
Whether Defendant Is Entitled to Summary Judgment on Plaintiff’s Hostile
Work Environment Discrimination Claim
After careful consideration, the Court answers this question in the affirmative for the
reasons stated in Defendant’s memoranda of law. See, supra, Part I.C.1 and 3 of this Decision
and Order. To those reasons, the Court adds the following analysis.
Title VII makes it unlawful “for an employer to discriminate against any of his
employees or applicants for employment . . . [or] to discriminate against any individual . . .
because he has opposed any practice made an unlawful employment practice by this subchapter,
31
See, e.g., Beers v. GMC, 97-CV-0482, 1999 U.S. Dist. LEXIS 12285, at *27-31
(N.D.N.Y. March 17, 1999) (McCurn, J.) (deeming plaintiff’s failure, in his opposition papers, to
oppose several arguments by defendants in their motion for summary judgment as consent by
plaintiff to the granting of summary judgment for defendants with regard to the claims that the
arguments regarded, under Local Rule 7.1[b][3]; Devito v. Smithkline Beecham Corp., 02-CV0745, 2004 WL 3691343, at *3 (N.D.N.Y. Nov. 29, 2004) (McCurn, J.) (deeming plaintiff’s
failure to respond to “aspect” of defendant’s motion to exclude expert testimony as “a
concession by plaintiff that the court should exclude [the expert’s] testimony” on that ground).
20
or because he has made a charge, testified, assisted, or participated in any manner in any
investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a).
1. Hostile Work Environment
“To establish a hostile work environment under Title VII . . . , a plaintiff must show that ‘the
workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently
severe or pervasive to alter the conditions of the victim’s employment and create an abusive
working environment.’” Littlejohn v. City of New York, 795 F.3d 297, 320-21 (2d Cir. 2015)
(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 [1993]). This standard is both subjective
and objective: “the conduct complained of must be severe or pervasive enough that a reasonable
person would find it hostile and abusive, and the victim must subjectively perceive the work
environment to be abusive.” Littlejohn, 795 F.3d at 321. “The incidents complained of must be
more than episodic; must be sufficiently continuous and concerted in order to be deemed
pervasive.” Littlejohn, 795 F.3d at 321. “In determining whether a plaintiff suffered a hostile
work environment, [a court] must consider the totality of the circumstances, including ‘the
frequency of the discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an
employee’s work performance.’” Littlejohn, 795 F.3d at 321 (quoting Harris, 501 U.S. at 23).
Additionally, after a plaintiff has established that a hostile workplace existed, he must show
that the harassing conduct that “created the hostile situation should be imputed to the employer.”
Kotcher v. Rosa & Sullivan Appliance Ctr., Inc., 957 F.2d 59, 63 (2d Cir. 1992). “Where the
hostile environment is created by a nonsupervisory coworker, the employer is liable only if it
was negligent in controlling the workplace conditions.” Hoag v. Fallsburg Cent. Sch. Dist., 279
F. Supp. 3d 465, 480 (S.D.N.Y. 2017) (citing Vance v. Ball State Univ., 570 U.S. 421 [2013]).
21
“The employer’s vicarious liability for nonsupervisory coworkers depends on a showing that the
employer knew, or reasonably should have known, about the harassment but failed to take
appropriate remedial action.” Hoag, 279 F. Supp. 3d at 480 (citing Petrosino v. Bell Atlantic,
385 F.3d 210, 225 [2d Cir. 2004]).
The Court need not assess whether the comments allegedly made by Plaintiff’s
nonsupervisory coworker could constitute conduct creating a hostile work environment because
there is no evidence from which a reasonable factfinder could conclude that Defendant is liable
for that employee’s conduct. Specifically, Plaintiff admits that he failed to inform Ms.
Heinmiller that this conduct was occurring or that he found it offensive, and he has offered no
evidence to show that Ms. Heinmiller or any other relevant supervisor was aware of (or had
reason to be aware of) that conduct at any relevant time. (Dkt. No. 59, Attach. 32, at 9-10 [Pl.’s
Dep.] [testifying that he never reported his coworker’s statements and conduct to his supervisor
and he only knew two other specific employees, a social worker and a physician, who might
have been aware of some of the comments].) Without such knowledge, or evidence that
Defendant reasonably should have possessed such knowledge, Defendant cannot be held liable
for the conduct of its nonsupervisory employees, no matter how offensive that conduct might be.
See Hoag, 279 F. Supp. 3d at 482 (“The District cannot be held liable for a comment made by
Plaintiff’s coworker where Plaintiff never reported the comment to anyone at the District.”). As
a result, the Court finds that summary judgment is appropriate on Plaintiff’s hostile work
environment claim.
2. Discriminatory Termination
“In order to make out a prima facie case of racial discrimination in the termination of
employment in violation of Title VII, a plaintiff is required to adduce some evidence that would
22
permit a factfinder to infer, inter alia, that the termination occurred under circumstances giving
rise to an inference of discrimination.” Patterson v. Cty. of Oneida, N.Y., 375 F.3d 206, 221 (2d
Cir. 2004) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 [1973]). “Once the
plaintiff satisfies his initial, ‘minimal,’ burden, . . . the burden of proof shifts to the employer to
articulate some legitimate, nondiscriminatory reason for the termination . . . supported by
admissible evidence which, if believed by the trier of fact, would support a finding that unlawful
discrimination was not the cause of the employment action.” Patterson, 375 F.3d at 221
(internal citations and quotation marks omitted). “If the employer carries this burden, the burden
shifts back to the plaintiff to demonstrate by competent evidence that ‘the legitimate reasons
offered by the defendant were not its true reasons, but were a pretext for discrimination.’”
Patterson, 375 F.3d at 221 (quoting Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253
[1981]).
Here, Plaintiff has not surmounted even the first hurdle of establishing a prima facie case of
discrimination because he has offered no admissible evidence that Ms. Heinmiller or the Human
Resources office exhibited any conduct that could raise a reasonable inference of discriminatory
intent when terminating his employment. In his deposition, Plaintiff testified that Ms.
Heinmiller acted distant with him after his first two weeks of employment in that she would
hardly acknowledge him in the morning despite being more friendly with other employees, she
would have other employees in her office to talk with them but she never met to talk with
Plaintiff, and she generally never engaged in “water fountain conversation” with him like she did
with the other employees. (Dkt. No. 59, Attach. 32, at 6-7, 25-26 [Pl.’s Dep.].) He also testified
that he felt he was discriminated against because, when mistakes came to light, Ms. Heinmiller
assumed he was the one who made them before investigating the matter; however, he was never
23
disciplined for any mistakes, even mistakes that he admits making. (Dkt. No. 59, Attach. 32, at
23 [Pl.’s Dep.].) He also testified that he felt the atmosphere of the office was “racial” in a way
he could not explain, but he failed to provide any elaboration or specific examples of this
atmosphere. (Dkt. No. 59, Attach. 32, at 26 [Pl.’s Dep.].) In his affidavit, Plaintiff stated that
Ms. Heinmiller made a statement to him during the first month of his employment that “she
wished she could have interviewed [him] before [he] got the job.” (Dkt. No. 11, at 6, ¶ 7 [Pl.’s
Aff.].)
Although this evidence suggests that Ms. Heinmiller may not have liked Plaintiff on a
personal or professional level, it does not establish even an inference that her dislike was based
on Plaintiff’s race or mental disability. General dislike of an employee or failure to be friendly
is not actionable without evidence from which a reasonable factfinder could infer that the
negative treatment was based on the plaintiff’s protected characteristics. See Zacharowicz v.
Nassau Health Care Corp., 177 F. App’x 152, 155 (2d Cir. 2006) (affirming dismissal of claims
where no reasonable jury could conclude that plaintiff’s termination was motivated by
discrimination rather than mere dislike caused by dysfunctional relationships plaintiff had with
colleagues and complaints about the way plaintiff treated staff and patients); Roman v. Cornell
Univ., 53 F. Supp. 2d 223, 242 (N.D.N.Y. 1999) (McAvoy, C.J.) (“Dislike of an individual, even
if that individual is a member of a protected group, without more, does not amount to prohibited
discrimination.”). Because Plaintiff has not provided any evidence from which a reasonable
factfinder could conclude that Ms. Heinmiller’s conduct towards him was based on his race or
mental disability, there is also no basis to infer that Ms. Heinmiller’s recommendation that his
employment should be terminated was related to his race or mental disability.
24
Additionally, as Defendant argues, there is a reasonable inference against discriminatory
intent here because Ms. Heinmiller was the supervisor who initially decided to hire Plaintiff and
who ultimately made the recommendation to fire him, and his termination occurred within a
relatively short time (approximately six months) after his being hired as an MSA. See Spadaro
v. McKeon, 693 F. Supp. 2d 183, 188 (N.D.N.Y. 2010) (Kahn, J.) (noting that “the fact that
McKeon is both the person responsible for hiring and firing Plaintiff, makes Plaintiff’s
discrimination claim unlikely,” an inference that was “particularly strong given the short period,
five months only, between her hiring and firing”); Jones v. M.M.O. Music Gr., 08-CV-7125,
2010 WL 6210400, at *5 (S.D.N.Y. Mar. 23, 2010) (finding that the same-actor inference
applied where the plaintiff was fired “only seven months” after being hired); cf. Imperato v.
Otsego Cty. Sherriff’s Dept., 13-CV-1594, 2016 WL 1466545, at *21 n.18 (N.D.N.Y. Apr. 14,
2016) (Sannes, J.) (finding that the Court did not need to apply the same-actor inference because
more than three years had elapsed between the hiring and firing). The Court notes that “[t]he
same-actor inference ‘is generally not a sufficient basis to grant summary judgment for the
employer, . . . when the employee has proffered evidence of a pretext.’” Trostle v. State of New
York, 13-CV-0709, 2016 WL 1175215, at *12 (N.D.N.Y. Mar. 24, 2016) (Suddaby, C.J.)
(collecting cases). However, as will be discussed in the following paragraph, Plaintiff has not
provided evidence that Defendant’s nondiscriminatory reasons for the termination were
pretextual. Thus, the same-actor inference would apply here and provides an additional or
alternative basis for the Court’s finding that Plaintiff has not sufficiently established an inference
of discrimination to withstand Defendant’s motion.
Alternatively, even if Plaintiff had provided sufficient evidence to raise an inference of
discrimination, Defendant has provided ample evidence of legitimate nondiscriminatory reasons
25
for his termination, i.e., the evidence of needing to train him multiple times on certain aspects of
his job because he made mistakes and his failure to follow the procedures for taking leave
despite being reminded of those procedures on multiple occasions. Plaintiff has not adduced any
evidence to show that these reasons were pretextual, and has not even denied that he made the
documented mistakes or failed to follow procedures on multiple occasions. As a result, the
Court finds that summary judgment is appropriate on Plaintiff’s discriminatory termination
claim.
B.
Whether Defendant Is Entitled to Summary Judgment on Plaintiff’s
Retaliation Claim
After careful consideration, the Court answers this question in the affirmative for the
reasons stated in Defendant’s memoranda of law. See, supra, Part I.C.1 and 3 of this Decision
and Order. To those reasons, the Court adds the following analysis.
To establish a prima facie case of retaliation under Title VII, a plaintiff must show the
following four things: “(1) she engaged in a protected activity; (2) her employer was aware of
this activity; (3) the employer took adverse employment action against her; and (4) a causal
connection exists between the alleged adverse action and the protected activity.” Russell v. Aid
to Developmentally Disabled, Inc., 753 F. App’x 9, 14 (2d Cir. 2018) (quoting Summa v. Hofstra
Univ., 708 F.3d 115, 125 [2d Cir. 2013]). “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.” Summa, 708 F.3d at 125. “If the employer
demonstrates such a reason, the burden shifts back to the plaintiff to adduce evidence from
which a rational finder of fact could infer ‘that the desire to retaliate was the but-for cause of the
challenged employment action.’” Russell, 753 F. App’x at 14 (quoting Ya-Chen Chen v. City
Univ. of New York, 805 F.3d 59, 70 [2d Cir. 2015]).
26
Here, Defendant argues that Plaintiff cannot establish even a prima facie claim of
retaliation because Ms. Heinmiller was unaware that Plaintiff had made an EEO complaint at the
time she recommended his termination, or indeed at any time before his termination became
effective. Ms. Heinmiller stated in her affidavit that she formulated her recommendation that
Plaintiff’s employment be terminated on July 22, 2015, after Plaintiff was absent from work that
day without contacting her. (Dkt. No. 59, Attach. 4, at ¶¶ 25-26 [Heinmiller Aff.].) She further
states that she was not informed about Plaintiff’s EEO complaint until September 2015, after he
had already been terminated. (Id. at ¶¶ 31-32.) Plaintiff has offered no evidence to contradict
Ms. Heinmiller’s statements, but rather argues that, given the fact that he was terminated 30 days
after he made his complaint to the EEO officer, “any reasonable person would feel that because
of my complaint I was terminated.” (Dkt. No. 61, at 2 [Pl.’s Opp’n Mem. of Law].) However,
Plaintiff himself admits that he has not seen any evidence that the EEO officer contacted Ms.
Heinmiller about his complaint before she made her recommendation of termination. (Id.)
He also points to the fact that Ms. Heinmiller completed the Douglas Factors Checklist
on the same day he made his initial complaint to the EEO officer, implying that this cannot
reasonably be a coincidence. (Dkt. No. 63, at ¶ 79 [Pl.’s Rule 56.1 Resp.].) However, even if
this temporal proximity were sufficient to allow a reasonable factfinder to conclude that Ms.
Heinmiller was aware of Plaintiff’s EEO complaint (despite her explicit statement that she was
not), as Ms. Heinmiller has explained, she was prompted to make her recommendation on that
day specifically because Plaintiff had again been absent without leave or contact that day.
Plaintiff’s absence on that date (following previous failures to follow leave protocol) is a
legitimate nonretaliatory reason for his termination, and Plaintiff has not provided evidence
beyond temporal proximity to show that his EEO complaint was likely even a factor in his
27
termination, much less the but-for cause of his termination. See Zann Kwan v. Andalex Gr.,
LLC, 737 F.3d 834, 847 (2d Cir. 2013) (“Temporal proximity alone is insufficient to defeat
summary judgment at the pretext stage.”). Indeed, the contemporaneous Reports of Contact
support Defendant’s proffered legitimate reasons, documenting (a) when Plaintiff was found to
have committed a mistake in his work, (b) the fact that Ms. Heinmiller and/or others provided
guidance to him on these occasions, and (c) when he was absent from work without prior
authorization and the contacts (or lack thereof) he had with Ms. Heinmiller and others related to
those absences. Because Plaintiff has not provided evidence from which a reasonable factfinder
could conclude that Ms. Hienmiller was aware of Plaintiff’s EEOC complaint, much less that it
was the but-for cause of his termination, the Court finds that summary judgment is appropriate
on Plaintiff’s retaliation claim.
ACCORDINGLY, it is
ORDERED that Defendant’s motion for summary judgment (Dkt. No. 59) is
GRANTED; and it is further
ORDERED that Plaintiff’s hostile work environment, discriminatory termination, and
retaliation claims are DISMISSED with prejudice; and it is further
ORDERED that Plaintiff’s Amended Complaint (Dkt. No. 11) is DISMISSED.
Dated: March 19, 2021
Syracuse, NY
28
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