Kinnin v. Skidmore College

Filing 49

MEMORANDUM-DECISION and ORDER - That Skidmore's motion for summary judgment (Dkt. No. 41) is GRANTED. That Skidmore's motion to preclude expert testimony (Dkt. No. 42) is DENIED as moot. That the complaint (Dkt. No. 1) is DISMISSED. That the Clerk is directed to close this case. Signed by Senior Judge Gary L. Sharpe on 8/1/2022. (jel, )

Case 1:19-cv-00629-GLS-TWD Document 49 Filed 08/01/22 Page 1 of 22

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
KATHY KINNIN,
1:19-cv-629
(GLS/TWD)

Plaintiff,
v.
SKIDMORE COLLEGE,

Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Cooper, Erving & Savage, LLP
39 North Pearl Street
4th Floor
Albany, NY 12207

FOR THE DEFENDANT:
Bond, Schoeneck & King, PLLC
268 Broadway
Suite 104
Saratoga Springs, NY 12866

PHILIP G. STECK, ESQ.

MICHAEL D. BILLOK, ESQ.
ERIC M. O’BRIEN, ESQ.

22 Corporate Woods Blvd, Suite 501
Albany, NY 12211
Gary L. Sharpe
Senior District Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction

Case 1:19-cv-00629-GLS-TWD Document 49 Filed 08/01/22 Page 2 of 22

Plaintiff Kathy Kinnin commenced this action against defendant
Skidmore College, alleging employment discrimination and retaliation in
violation of Title VII of the Civil Rights Act of 1964. 1 (Compl., Dkt. No. 1.)
Now pending are Skidmore’s motion for summary judgment, (Dkt. No. 41),
and to preclude expert testimony, (Dkt. No. 42). For the reasons that
follow, Skidmore’s motion for summary judgment is granted2 and its motion
to preclude expert testimony is denied as moot.3

1

See 42 U.S.C. §§ 2000e-2000e-17.

2

Kinnin also brought a Title IX nepotism claim, however, she did not respond to
Skidmore’s arguments for summary judgment on this claim (Dkt. No. 45.) “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.” Rehkugler v. Aetna Life Ins. Co., No. 516-CV0024, 2017 WL 3016835, at *13 (N.D.N.Y. July 14, 2017) (citing N.D.N.Y. L.R. 7.1(b)(3) (other
citations omitted)). While Skidmore’s contention that summary judgment should be granted
because there is no private right of action for gender discrimination under Title IX no longer
has merit, see Vengalatorre v. Cornell University, 36 F.4th 87, 106 (2d. Cir. 2022), Skidmore’s
alternative argument regarding the absence of a viable nepotism claim under Title IX has facial
merit. (Dkt. No. 41, Attach. 5, at 30-32.) Thus, Skidmore has met its lightened burden and
Skidmore’s motion for summary judgment with respect Kinnin’s nepotism claim is granted.
3

Because Skidmore’s motion for summary judgment has been granted on all claims,
Skidmore’s motion to preclude Kinnin’s expert testimony and expert report, (Dkt. No. 42), is
denied as moot. See Kandt v. Taser Intern., Inc., No. 5:09-CV-0507, 2012 WL 2861583, at * 5
(N.D.N.Y. Jul. 10, 2012) (denying motions to preclude expert testimony as moot after granting
summary judgment on all claims.)

2

Case 1:19-cv-00629-GLS-TWD Document 49 Filed 08/01/22 Page 3 of 22

II. Background
A.

Facts4
Skidmore is a private college in Saratoga Springs, New York. (Def.’s

Statement of Material Facts (SMF) ¶ 1, Dkt. No. 41, Attach. 1.) Kinnin was
an employee in Skidmore’s Information Technology (IT) Department from
2010 until her termination in 2018. (Id. ¶ 2.) When Kinnin was first hired
as a Mac computer technician, her direct supervisor was Tom Marcotte,
Director of User Services. (Id. ¶¶ 3, 5.) In 2014, Marcotte was promoted
from Director of User Services to Director of IT Planning and Strategic
Communications and Kinnin replaced him as Director of User Services.
(Id. ¶ 6.) In her new position, Kinnin reported to Chief Technology Officer
William Duffy, and no longer reported to Marcotte. (Id.)
After Kinnin’s promotion, problems arose between Kinnin and two
different employees: Chris Bailey and Leon Briggs. Bailey was hired in
September 2014 as a media technician. (Id. ¶ 23.) Kinnin complained
about Bailey to Duffy in February 2015, citing, among other things, his

4

Because Kinnin disputes portions of various paragraphs in Skidmore’s statement of
material facts, to the extent the court cites to one of these paragraphs, it is citing to an
undisputed portion thereof.

3

Case 1:19-cv-00629-GLS-TWD Document 49 Filed 08/01/22 Page 4 of 22

aggressive behavior and an instance where Bailey grabbed Kinnin by the
arm “as if to guide [her].” (Id. ¶¶ 24-25; Dkt. No. 45, Attach. 4; Dkt. No. 45,
Attach 5.) Kinnin continued to communicate her problems with Bailey to
Duffy, who encouraged Kinnin to speak with Skidmore’s Human Resources
(HR) Department. (Def.’s SMF ¶ 26.) Kinnin met with a representative
from HR in August 2015 and again in October 2015 about her complaints
regarding Bailey’s behavior. (Id. ¶¶ 26, 29.) Duffy and Barbra Beck from
HR informed Kinnin that Duffy was meeting with Bailey every two to three
weeks to address his behavior, however, Kinnin asserts that no m ore than
one of these meetings between Duffy and Bailey occurred. (Id. ¶¶ 28-29;
Pl.’s SMF ¶¶ 28-29.) Bailey resigned on November 11, 2015, after it was
discovered that he had falsified travel reimbursements. (Def.’s SMF ¶ 34.)
After Kinnin’s promotion to director, Skidmore had an opening for a
Mac technician. (Id. ¶ 16.) Marcotte recommended his friend, Briggs, for
the position. (Id.) Briggs was hired even though he did not have
experience working with Mac computers. (Id. ¶¶ 16-17.) Kinnin was
Briggs’ supervisor. (Dkt. No. 45, Attach. 14 ¶¶ 13-14.) Kinnin and Briggs
often “butted heads” and Kinnin described having “great difficulty with
Briggs as an employee” and believed that Briggs could not overcome his
4

Case 1:19-cv-00629-GLS-TWD Document 49 Filed 08/01/22 Page 5 of 22

lack of Mac experience. (Def.’s SMF ¶ 19; Dkt. No. 45, Attach. 14 ¶ 13.)
In 2017, Kinnin was planning to give Briggs a “needs improvement”
performance evaluation, which would have resulted in Briggs not receiving
a raise, however, Duffy changed Briggs’ evaluation to satisfactory. (Def.’s
SMF ¶¶ 20-21.) Skidmore’s reasoning for Duffy overriding Kinnin’s review
was that the college wanted to limit the amount of “needs improvement”
evaluations across campus. (Id. ¶¶ 21-22.)
From 2015 to 2018, Kinnin made numerous complaints about
Marcotte and the way the IT Department way being run, which she
communicated to Duffy, the HR department, and other senior staff. (Dkt.
No. 41, Attach. 4, at 854-58, 871-82. 5) In an e-mail to Duffy in June 2017,
Kinnin claimed Marcotte’s conduct was harassment. (Dkt. No. 45, Attach.
15 at 135-36.) Duffy shared this e-mail with Marcotte, who disputed these
allegations (Id.) Marcotte then suggested to Duffy that Kinnin should be
investigated for performing unauthorized tasks, and provided Duffy with a
list of critiques to include in Kinnin’s 2018 performance evaluation. (Id. at
132-34.)

5

Where page numbers are generated by CM/ECF, the Court's electronic filing
system, citations to filings refer to these generated page numbers.

5

Case 1:19-cv-00629-GLS-TWD Document 49 Filed 08/01/22 Page 6 of 22

At some point while working under Kinnin, Briggs told another IT
employee, Christopher Breslin, that he was trying to get Kinnin fired. (Dkt.
No. 45, Attach. 30, at 15.) Briggs and Marcotte frequently met in
Marcotte’s office during the workday with the door closed. (Dkt. No. 45,
Attach. 27 at 36-37; Dkt. No. 45, Attach. 36 at 28.) In spring 2018, Kinnin
observed that Briggs was not performing tasks as she instructed him,
which caused Kinnin to believe that Briggs was conspiring with M arcotte
“to make it seem like [Kinnin] was not managing [Briggs] properly” by
having Briggs intentionally sabotage his work. (Def.’s SMF ¶¶ 126-27.)
While Kinnin never heard any conversation or saw any docum ent to
suggest Marcotte and Briggs had done so, she believed they were
conspiring against her because of their frequent meetings behind closed
doors. (Id. ¶ 128.)
Briggs met with Gretchen Steffan in the HR Department in March
2018, where they discussed Kinnin’s treatment of Briggs. (Def.’s SMF

¶

92.) On May 15, 2018, Steffan drafted a complaint alleging race
discrimination on behalf of Briggs against Kinnin. (Id.) Skidmore hired a
third-party investigator, Diane Pfadenhauer, a fifteen-year hum an
resources professional, to handle Briggs’ complaint. (Id. ¶¶ 93-95.) Kinnin
6

Case 1:19-cv-00629-GLS-TWD Document 49 Filed 08/01/22 Page 7 of 22

filed a formal written complaint alleging gender discrimination by Marcotte
on May 30, 2018. (Id. ¶ 98.) Skidmore directed Pfadenhauer to
investigate Kinnin’s complaint in addition to Briggs’ complaint. (Id. ¶ 97.)
Pfadenahuer interviewed twenty-six people and reviewed over 200
documents sent by Kinnin as a part of her investigation. (Id. ¶ 104.) At the
conclusion of the investigation, Pfadenhauer issued a report with her
findings. (Id. ¶ 107.) Pfadenhauer determined that whether Kinnin’s
treatment of Briggs was race-based was inconclusive, but found that
Kinnin “has a history of subjecting certain . . . employees to her wrath for
unknown reasons. This wrath includes painstaking micromanagement,
intense criticism of work and tasks, assignment of menial responsibilities,
etc., until the individual either resigns or is terminated.” (Dkt. No. 47,
Attach. 2 at 5-6.) Pfadenhauer also concluded that Kinnin had not been
subjected to gender discrimination. (Def.’s SMF ¶ 110; Dkt. No. 47,
Attach. 2 at 24.) Based on the report, Michael West, Skidmore’s Vice
President of Finance, decided to terminate Kinnin’s employment on the
basis of poor performance and poor management skills. (Def.’s SMF

¶

112.)
In her formal written complaint, Kinnin alleged that she was subjected
7

Case 1:19-cv-00629-GLS-TWD Document 49 Filed 08/01/22 Page 8 of 22

to harassment, a hostile work environment, and misogyny at the hands of
Marcotte, and that Duffy “supprt[ed] and encourag[ed] [Marcotte’s]
behavior by not addressing it directly.” (Dkt. No. 41, Attach. 4 at 854.)
Additionally, Kinnin complained about the reporting process at Skidmore,
because her complaints of harassment were not seriously investigated, the
HR department and her supervisors were not always responsive to her
complaints, and information she reported was not kept confidential,
referring to the system as “extremely flawed.” (Id. at 854-58.) Kinnin also
claimed that Briggs’ complaint against her was “retaliatory” and “additional
harassment orchestrated by . . . Marcotte.” (Id. at 858.)
B.

Procedural History
Kinnin filed a charge of discrimination with the U.S. Equal

Employment Opportunity Commission (EEOC). (Def.’s SMF ¶ 116.) The
EEOC dismissed Kinnin’s charge without investigation and issued a notice
of the right to sue. (Id. ¶ 117.) Kinnin thereafter commenced this action.
(Compl., Dkt. No. 1.) Skidmore now seeks summary judgment on all of
Kinnin’s claims and has moved to preclude the expert testimony and report
of Kinnin’s expert witness. (Dkt. Nos. 41, 42.)

8

Case 1:19-cv-00629-GLS-TWD Document 49 Filed 08/01/22 Page 9 of 22

III. Standard of Review
The standard of review under Fed. R. Civ. P. 56 is well settled and
will not be repeated here. For a full discussion of the governing standard,
the court refers the parties to its prior decision in Wagner v. Swarts, 827 F.
Supp. 2d 85, 92 (N.D.N.Y. 2011), aff’d sub nom. Wagner v. Sprague, 489
F. App’x 500 (2d Cir. 2012).
IV. Discussion
A.

Title VII Discrimination
Skidmore argues that Kinnin has failed to demonstrate that she was

discriminated against. (Dkt.

No. 41, Attach. 5, at 25-27.) Skidmore also

asserts the Kinnin was fired for a legitimate non-discriminatory reason and
that she is unable to demonstrate pretext. (Id. at 29.) Kinnin asserts that
she has established a prima facie case under Title VII because Skidmore
“consistently defend[s] the unacceptable behavior of its male employees . .
. rather than . . . supporting its [female] manager.” (Dkt. No. 45 at 25-29.)
Specifically, Kinnin contends that she was treated less favorably than other
male employees in the IT Department and that Marcotte was given
preferential treatment throughout Pfadenhauer’s investigation. (Id. at 2627.) Kinnin also raises the “cat’s paw” theory of liability, contending that
9

Case 1:19-cv-00629-GLS-TWD Document 49 Filed 08/01/22 Page 10 of 22

her termination was pretext to discrimination because the Pfadenhauer
investigation was heavily influenced by Marcotte and that the report was
simply “rubber-stamped” by West. (Id. at 34-35.) Additionally, Kinnin
maintains that she was not a poor manager and that she had “a fine
relationship with all employees except Marcotte and Briggs.” (Id. at 35.)
The court agrees that Kinnin has established her prima facie case but she
has failed to demonstrate pretext.
Claims of gender-based discrimination are analyzed under the threestep McDonnell Douglas burden-shifting framework. See Walsh v. N.Y.C.
Hous. Auth., 828 F.3d 70, 75 (2d Cir. 2016) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (2010)). First, the plaintiff must establish a
prima facie case of discrimination by demonstrating 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 adverse action
occurred under] circumstances [that] 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).
To show that the circumstances surrounding an adverse employment
action give rise to an inference of discrimination, the plaintiff may point to,

10

Case 1:19-cv-00629-GLS-TWD Document 49 Filed 08/01/22 Page 11 of 22

among other things, the treatment of similarly situated employees outside
of her protected class. See McGuinness v. Lincoln Hall, 263 F.3d. 49, 54
(2d Cir. 2001) (“A showing that the employer treated a similarly situated
employee differently is a common and especially effective method of
establishing a prima facie case of discrimination.”) (internal quotations and
citations omitted). The plaintiff is not required to show she was treated
less favorably than an identically situated male employee; instead, she
must show she was treated less favorably than a male employee who was
similarly situated in all material aspects. See McGinness, 263 F.3d at 54
(citing Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir.
1997)). Generally, whether employees are similarly situated is a question
of fact for a jury, but the court “may grant summary judgment in a
defendant’s favor on the basis of lack of similarity of situation . . . where no
reasonable jury could find that the persons to whom the plaintiff compares
[herself] are similarly situated.” Clubside, Inc. v. Valentin, 468 F.3d 144,
159 (2d Cir. 2006) (citations omitted).
If the plaintiff establishes a prima facie case of discrimination, the
employer must demonstrate a legitimate, non-discriminatory reason for the
adverse employment decision. See McDonnell Douglas, 411 U.S. at 802.

11

Case 1:19-cv-00629-GLS-TWD Document 49 Filed 08/01/22 Page 12 of 22

If the employer provides such a reason, the burden then shifts back to the
employee to present evidence that her employer’s proffered reason is a
pretext for discrimination. See id. at 804-05. At this stage, the plaintiff
must “show that [her] employer’s proffered reasons . . . were not the only
reasons [for her termination] and that [discrimination] was at least one of
the motivating factors.” Holcomb v. Iona Coll., 521 F.3d 130, 138 (2d Cir.
2008) (internal quotation marks and citations omitted).
Under the “cat’s paw” theory of liability, an employer may be liable for
discrimination in an adverse employment decision against an employee
where the ultimate decision maker is unbiased and has no discriminatory
motives. See Staub v. Proctor Hosp., 562 U.S. 411, 416 (2011). Under
this theory, the unlawful motive of a non-decision maker is imputed to the
decision maker, and employer, where the non-decision maker has some
significant influence that leads to the adverse employment action. See
Vasquez v. Empress Ambulance Serv., Inc., 835 F.3d 267, 272 (2d. Cir.
2016). In order to impute liability on the decision maker for the
discriminatory or retaliatory motive of another employee, the plaintiff must
show that the decision maker acted negligently. See id. at 275 (“Only
when an employer in effect adopts an employee’s unlawful animus by

12

Case 1:19-cv-00629-GLS-TWD Document 49 Filed 08/01/22 Page 13 of 22

acting negligently with respect to the information provided by the employee
. . . can the employee’s motivation be imputed to the employer and used to
support a claim under Title VII.”).
There appears to be no dispute that Kinnin satisfies the first three
elements required to make out a prima facie case for discrimination. (Dkt.
No. 45, at 26 n.4.) With respect to the fourth element, Kinnin has raised a
possible inference of discrimination in the circumstances surrounding her
termination. (Dkt. No. 45 at 25-29.) She has presented sufficient evidence
such that a reasonable jury could find that she was similarly situated to
Marcotte and treated less favorably than him. (Id.) Kinnin and Marcotte
were directors in Skidmore’s IT Department and reported to Duffy, and
both Kinnin and Marcotte received complaints of discrimination against
them, which were investigated by Pfadenhauer. (Def.’s SMF ¶¶ 6, 92, 9798.) However, Kinnin was terminated at the conclusion of the investigation
while Marcotte was not. (Id. ¶¶ 112, 115.) Accordingly, Kinnin has
satisfied the minimal requirements to state a prima facie claim for gender
discrimination. See McGuinness, 263 F.3d at 54-55 (finding that plaintiff
established her prima facie case for discrimination by demonstrating that
she received less severance pay than a male employee with whom she

13

Case 1:19-cv-00629-GLS-TWD Document 49 Filed 08/01/22 Page 14 of 22

shared a “roughly equal rank”).
While Kinnin has met her initial burden under the McDonnell Douglas
framework for her discrimination claim, Skidmore has provided a nondiscriminatory reason for Kinnin’s termination. (Def.’s SMF ¶ 114.)
Specifically, Kinnin was terminated because of poor management skills
and poor performance. Id.; see Varno v. Canfield, 664 F. App’x 63, 65 (2d
Cir. 2016) (explaining that defendants established a legitimate justification
by pointing to the fact that plaintiff was terminated for poor performance.)
Kinnin’s claim fails because she has not presented sufficient
evidence of pretext. Kinnin has not pointed to any evidence to suggest
that her gender was at least a motivating factor in West’s decision to
terminate her. Kinnin attempts to show Skidmore’s justification was
pretextual by attacking the Pfadenhauer report, which Skidm ore cites to as
the basis for her termination. (Dkt. No. 45 at 32-35.) Specifically, Kinnin
alleges that Brigg’s complaint against her was made in bad faith,
Pfadenhauer was not an independent party but rather heavily influenced by
Marcotte and afforded preferential treatment to Marcotte during the
investigation, Pfadenhauer “ignored information provided . . . if it did not
support a conclusion that Kinnin was a poor manager,” and the report was

14

Case 1:19-cv-00629-GLS-TWD Document 49 Filed 08/01/22 Page 15 of 22

simply “rubber-stamped” by West. (Id.) Kinnin’s speculative allegations,
without more, that Briggs’ complaint was made in bad faith and that the
investigation was just a plot to get her fired are insufficient to defeat
summary judgment. See DiGirolamo v. MetLife Group, Inc., 494 F. App’x
120, 121-22 (2d. Cir. 2012) (“Mere conclusory allegations or
unsubstantiated speculation by the plaintiff will not defeat sum mary
judgment.”).
Further, even if Kinnin’s allegations that Briggs’ complaint was filed in
bad faith, or that Marcotte and Briggs actually plotted to get Kinnin fired
because of her gender were true, Kinnin still cannot establish pretext under
the cat’s paw theory. Neither Briggs nor Marcotte had authority to fire
Kinnin, and she has not shown that Marcotte or Briggs played a meaningful
role in West’s decision to terminate her, as they were each just one of
twenty-six people interviewed as a part of the investigation and were not
involved in any of the discussions West had regarding the conclusions in
the report. See Jones v. Target Corp., 792 F. App’x 54, 56-57 (2d Cir.
2019) (finding that, even if the subordinate employee who provided the
supervisor with the information that lead to plaintiff’s termination had an
unlawful motive, the employer could not be found liable because the

15

Case 1:19-cv-00629-GLS-TWD Document 49 Filed 08/01/22 Page 16 of 22

plaintiff failed to show that the employee had any involvement in the
investigation and decision to terminate the plaintiff); (Def.’s SMF ¶¶ 11213.)
An additional barrier to Kinnin’s “cat’s paw” theory is the fact that,
even if Briggs or Marcotte had a discriminatory animus against Kinnin, she
has not demonstrated that West, the decision maker in her termination,
acted negligently. West did not blindly credit Briggs’ complaint against
Kinnin, he relied on the report generated from Pfadenhauer’s investigation,
which included interviews of twenty-six people and the review of over 200
documents. (Id. ¶¶ 104, 112.) West also conferred with Steffan and Duffy
before terminating Kinnin. (Id. ¶¶ 112-13.) West testified that “[I]f [Duffy]
objected strenuously [to Kinnin’s termination he] would have reconsidered”
his decision. (Dkt. No. 45, Attach. 26 at 59-60.) Here, there is no
evidence that West acted negligently in his decision to terminate Kinnin
based on the conclusions of Pfadenhauer. See Vasquez, 835 F.3d at 276
(“[A]n employer who, non-negligently and in good faith, relies on a . . .
report [recommending termination] cannot, under this “cat’s paw” theory,
be held accountable.”) Thus, Kinnin has not established that Skidm ore’s
justification for her termination was pretext, because her assertions about

16

Case 1:19-cv-00629-GLS-TWD Document 49 Filed 08/01/22 Page 17 of 22

the legitimacy of the Pfadenhauer investigation are too speculative and not
supported by the record, and Kinnin has not provided evidence to suggest
West had an unlawful animus or was negligent in relying on the
Pfadenhauer report in his decision to terminate her. (Def.’s SMF ¶ 112.)
B.

Title VII Retaliation
Skidmore argues that, because Pfadenhauer was already retained

to conduct an investigation into Briggs’ complaint against Kinnin before
Kinnin filed her complaint, and that she would have been terminated
regardless of whether she filed a complaint based on the Pfadenhauer
investigation, she cannot establish a causal connection between her
protected activity and termination. (Dkt. No. 41, Attach. 5, at 28-29.)
Skidmore further contends that, even if Kinnin has established a prim a
facie case for retaliation, she cannot show that the justification for her
termination for poor performance and management was pretext. (Id. at 3031.)
Kinnin counters that she has established a causal connection
between her protected activity and her termination because “HR
understood from day one that [Kinnin] was complaining about
discrimination against women,” and, thus, she was engaging in protected

17

Case 1:19-cv-00629-GLS-TWD Document 49 Filed 08/01/22 Page 18 of 22

activity before Briggs filed his complaint against her and Pfadenhauer was
retained to investigate. (Dkt. No. 45 at 31-32.) Kinnin also asserts that
there is direct evidence of retaliation because “Marcotte reacted angrily to
Kinnin’s [June 2017] email” and “accused Kinnin of insubordination,
sought her investigation, and advocated for the termination of her
employment.” (Id. at 33.) Kinnin again raises the cat’s paw theory of
liability, contending that Skidmore’s justification for her termination was
pretext for retaliation because the Pfadenhauer investigation was
influenced by Marcotte and that West merely “rubber-stamped” the report.
(Id. at 34.) Additionally, Kinnin maintains her termination was pretext
because she was not a poor manager and her relationships with all other
employees, with the exception of Marcotte and Briggs, were “fine.” (Id. at
35.)
Title VII retaliation claims are evaluated under the same three-step
burden shifting analysis as Title VII discrimination claims. See Hicks v.
Baines, 593 F.3d 159, 164 (2d Cir. 2010) (citations omitted); see also
McDonnell Douglas, 411 U.S. at 802-05. First, the plaintiff must establish
a prima facie case of retaliation by showing that “(1) she was engaged in
protected activity; (2) the employer was aware of that activity; (3) [she]

18

Case 1:19-cv-00629-GLS-TWD Document 49 Filed 08/01/22 Page 19 of 22

suffered a materially adverse action; and (4) there was a causal
connection between the protected activity and that adverse action.” Lore
v. City of Syracuse, 670 F.3d 127, 157 (2d Cir. 2012). If the plaintiff
establishes a prima facie case, the burden then shifts to the employer to
articulate a non-retaliatory rationale for the adverse action. See Cox v.
Onondaga Cnty. Sheriff’s Dept., 760 F.3d 139, 145 (2d Cir. 2014). “Once
the employer has done so, the employee may prevail by demonstrating
that the stated rationale is mere pretext” for retaliation. Id. To
demonstrate pretext, the employee must show that retaliation was a “but
for” cause of the adverse employment action. See Univ. of Tex. Sw. Med.
Ctr. v. Nassar, 570 U.S. 338, 346-47, 360 (2013). In other words, Kinnin
must show “that the adverse action would not have occurred in the
absence of the retaliatory motive.” Kwan v. Andalex Grp. LLC, 737 F.3d
834, 846 (2d Cir. 2013).
Assuming without deciding that Kinnin satisfies the first three
elements to establish her prima facie case for retaliation, with respect to
the fourth element, Kinnin has presented sufficient evidence to establish
that there was a causal connection between filing her formal complaint
and her termination. The undisputed facts support a causal connection

19

Case 1:19-cv-00629-GLS-TWD Document 49 Filed 08/01/22 Page 20 of 22

because Kinnin filed her complaint on May 30, 2018 and she was
terminated on July 19, 2018, after the conclusion of Pfadenhauer’s
investigation, less than two months after filing her formal complaint of
gender discrimination. See Simpson v. N.Y. State Dept. Of Civil Servs.,
166 F. App’x 499, 502 (2d Cir. 2006) (“[T]he temporal proximity of . . .
events gives rise to an inference of retaliation for the purposes of
[establishing a] prima facie case.”); Gorzynski v. JetBlue Airways Corp.,
596 F.3d 93, 110 (2d Cir. 2010); Risco v. McHugh, 868 F. Supp. 2d 75,
113 (S.D.N.Y. 2012) (“[T]he less than two-month temporal relationship
between the protected activity and . . . termination is sufficiently
proximate to support an inference of causation.”) Therefore, Kinnin has
established a prima facie case for retaliation.
Nonetheless, Skidmore has provided a non-retaliatory justification
for Kinnin’s termination. As previously discussed, Kinnin was terminated
on the grounds of poor performance and management skills, which is a
legitimate justification for her termination. See supra Part IV.A; Varno,
664 F. App’x. at 65.
Kinnin has failed to present sufficient evidence of pretext with
respect to her retaliation claim. Kinnin raises the same arguments to

20

Case 1:19-cv-00629-GLS-TWD Document 49 Filed 08/01/22 Page 21 of 22

rebut Skidmore’s justification under her retaliation claim as she does
regarding her discrimination claim. (Dkt. No. 45 at 34-35.) As previously
discussed, Kinnin’s speculative and conclusory allegations about the
legitimacy of Briggs’ complaint and the independence of the Pfadenhauer
investigation, without more, are insufficient to defeat a motion for
summary judgment. See supra Part IV.A. Additionally, Kinnin cannot
show pretext for retaliation under the cat’s paw theory of liability as she
has not shown Marcotte, Briggs, or anyone with a retaliatory animus
against her influenced West’s decision to terminate her, nor has Kinnin
demonstrated that West acted negligently in relying on Pfadenhauer’s
report. See id. Thus, for the reasons previously discussed, see supra
Part IV.A, Kinnin has failed to show that her termination was pretext for
retaliation.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Skidmore’s motion for summary judgment (Dkt.
No. 41) is GRANTED; and it is further
ORDERED that Skidmore’s motion to preclude expert testimony
(Dkt. No. 42) is DENIED as moot; and it is further
21

Case 1:19-cv-00629-GLS-TWD Document 49 Filed 08/01/22 Page 22 of 22

ORDERED that the complaint (Dkt. No. 1) is DISMISSED; and it is
further
ORDERED that the Clerk is directed to close this case; and it is
further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
August 1, 2022
Albany, New York

22