Edwards v. Onondaga Community College et al

Filing 37

MEMORANDUM-DECISION AND ORDER granting 26 Motion for Summary Judgment; denying 29 Motion for Summary Judgment: The Court hereby ORDERS that Defendant's motion for summary judgment is GRANTED; and the Court further ORDERS that Plaintiff&# 039;s motion for summary judgment is DENIED; and the Court further ORDERS that the Clerk of the Court shall enter judgment in Defendant's favor and close this case; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision and Order on the parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 6/22/2016. (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
CINDY A. EDWARDS,
Plaintiff,
vs.

5:14-cv-1329
(MAD/DEP)

ONONDAGA COMMUNITY COLLEGE,
Defendant.
____________________________________________
APPEARANCES:

OF COUNSEL:

CINDY A. EDWARDS
27 Fennell Street, Suite B
Box 162
Skaneateles, New York 13152
Plaintiff pro se
ONONDAGA COMMUNITY COLLEGE
4585 West Seneca Turnpike
Syracuse, New York 13215
Attorney for Defendant

KEVIN M. MOORE, ESQ.

Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION
On October 31, 2014, Plaintiff Cindy A. Edwards ("Plaintiff") commenced this action pro
se pursuant to the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq.
See Dkt. No. 1; Dkt. No. 19-2 at 4. Defendant Onondaga Community College ("Defendant") and
Plaintiff both filed motions for summary judgment pursuant to Rule 56 of the Federal Rules of
Civil Procedure ("Rule 56)", seeking dismissal of Plaintiff's complaint in its entirety and a
judgment of liability, respectively. See Dkt. Nos. 27; 29.

II. BACKGROUND
Plaintiff was employed by Defendant as a part-time, temporary academic tutor on a per
diem basis from the Fall semester of 2003 through the Spring semester of 2013. See Dkt. No. 272 at ¶ 1. Plaintiff worked in the Content Tutoring Center ("CTC") where she tutored in the
academic areas of architectural technology, meteorology, and interior design. See Dkt. No. 12-1;
Dkt. No. 27-2 at ¶ 1; Dkt. No. 27-9 at ¶ 4. The CTC employed more than one hundred twenty
people and, among those, forty-one tutors were classified as Academic Tutor II, which was
Plaintiff's classification. See Dkt. No. 27-2 at ¶ 32; Dkt. No. 27-9 at ¶ 12.1 The Academic Tutor
II is a classification that requires the employee to have a bachelor's degree in addition to more
tutoring experience than the classification of Academic Tutor I. See Dkt. No. 27-9 at ¶ 12.
The terms and conditions of Plaintiff's employment by Defendant were outlined in a
document entitled "Content Tutoring Center Onondaga Community College Tutor Agreement,"
(the "Agreement") and the document was signed by Plaintiff. See Dkt. No. 12-1. The Agreement
stated, in part, that Plaintiff's position was a part-time, temporary position and that the Agreement
was not an employment contract, obligation of employment, or continued employment. See id.
In addition to academic tutoring, Plaintiff performed clerical work and receptionist work on a
part-time basis for the CTC. See Dkt. No. 27-2 at ¶¶ 5-6. The tutoring work hours varied and
were unpredictable because they depended on the amount of student demand for tutoring services.
See id. at ¶ 8.

The Defendant's Director of Human Resources and Labor Relations, John Geer, provided
the Court with a list of these classified tutors and their ages. See Dkt. No. 27-9 at ¶ 12.
1

2

During the Fall of 2012 – the relevant period of time in the complaint, Plaintiff was fiftyfour years old. See id. at ¶ 9. At that time, Plaintiff's immediate supervisor was Wendy
Hammond, the Coordinator of the CTC was Karen Hale, and the overall Administrator was
Eunice Williams. See id. at ¶ 10. In September 2012, Wendy Hammond asked Plaintiff to train a
newly hired tutor, Paula Gould, to do the clerical work that is a normal part of the CTC
operations. See id. at ¶ 11. Thereafter, Karen Hale decided to remove Plaintiff from the reception
desk in the evening hours, and Plaintiff was informed of her removal on October 23, 2012. See
id. at ¶¶ 13, 21. Abel Pinker, who was twenty-six years old, replaced Plaintiff for those evening
hours, and he was paid a lower hourly rate. See id. at ¶ 21. After Plaintiff's removal from the
reception desk, she was not limited in her hours for tutoring in her subject areas. See id. at ¶ 24.
Plaintiff lodged a complaint via email with Defendant's Human Resources Department on
October 29, 2012, and she alleged a hostile work environment but did not reference any agerelated discrimination. See id. at ¶ 25; Dkt. No. 27-9 at ¶¶ 6-8; Dkt. No. 29 at 26. As a result of
this complaint, Plaintiff's direct supervisor was changed from Wendy Hammond to Karen Hale.
See Dkt. No. 27-2 at ¶ 28. In November 2012, Plaintiff filed a "Notice of Intent" with the Equal
Employment Opportunity Commission ("EEOC"). See id. at ¶ 29. By notice dated July 29, 2014,
Plaintiff was notified that the EEOC dismissed the claim and provided notice of Plaintiff's right to
file a lawsuit. See Dkt. No. 1 at 11.
On October 31, 2014, Plaintiff commenced this action pro se alleging violations of the
ADEA. See Dkt. No. 1. In a Report, Recommendation, and Order dated December 17, 2014,
Magistrate Judge David E. Peebles granted Plaintiff's application to proceed in forma pauperis
("IFP"). See Dkt. No. 4. Magistrate Judge Peebles recommended that Plaintiff's claims for
termination of employment, failure to promote, and creating a hostile work environment in
3

violation of the ADEA be dismissed because Plaintiff failed to plausibly allege those claims. See
Dkt. No. 4. He also recommended that Plaintiff be granted leave to amend her complaint on the
claims for failure to promote and creating a hostile work environment. See id. Additionally,
Magistrate Judge Peebles recommended that the claims against the individually named defendants
be dismissed because there is no individual liability under the ADEA. See id.
This Court adopted Magistrate Judge Peebles' Report, Recommendation, and Order in its
entirety, and granted Plaintiff leave to replead the dismissed ADEA claims. See Dkt. No. 5.
Although several claims and the individual defendants were dismissed, this Court accepted
Plaintiff's complaint with the following claims: (1) a violation of the ADEA by reducing her
working hours and (2) a violation of the ADEA by engaging in retaliation against Plaintiff. See
Dkt. Nos. 1, 4, 5. Plaintiff's time to amend her complaint has expired, and the parties have both
moved for summary judgment pursuant to Rule 56. See Dkt. Nos. 15, 27, 29.

III. DISCUSSION

A.

Standard of Review
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 undisputed facts 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). "The moving party bears the burden of showing that he or she is
entitled to summary judgment." Huminski v. Corsones, 396 F.3d 53, 69 (2d Cir. 2004); see also
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party must identify the basis for
the motion as well as those portions of the record which demonstrate that there is no genuine
issue of material fact. See Celotex, 477 U.S. at 323. When analyzing a summary judgment
4

motion, the court "cannot try issues of fact; it can only determine whether there are issues to be
tried." Chambers, 43 F.3d at 36-37 (quotation marks and other citation omitted).
If "a properly supported motion for summary judgment is made," then the burden of
production shifts to the non-movant to "set forth specific facts showing that there is a genuine
issue" of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (internal
quotation marks and citation omitted). It is well-settled that a party opposing a motion for
summary judgment may not simply rely on the assertions in its pleadings. See Celotex, 477 U.S.
at 324 (citing FED. R. CIV. P. 56(c), (e)). In assessing whether any such issues of material fact
exist within the record, 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, 477
U.S. at 255) (other citations omitted).
B.

Local Rule 7.1(a)(3)
In evaluating the Parties' motions for summary judgment, the Court initially notes that

Plaintiff has not complied with Local Rule 7.1(a)(3) in her motion for summary judgment or in
her opposition to Defendant's motion for summary judgment. See Dkt. Nos. 29, 33. The
"[f]ailure of the moving party to submit an accurate and complete Statement of Material Facts
shall result in a denial of the motion." L.R. 7.1(a)(3). Here, Plaintiff included a brief section
entitled "STATEMENT OF FACTS" which states in its entirety, "As documented in Exhibits 1
through [_] filed concurrently with this Affidavit, together with evidence of record already filed
with the Court. Plaintiff also relies upon its original complaint and Defendant's answer." Dkt.
No. 29 at 5.
Plaintiff's motion papers are not in compliance with the local rule requirement. See id. A
party's pro se status "'does not exempt a party from compliance with relevant rules of procedural
5

and substantive law.'" Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006)
(quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)); see also Cusamano v. Sobek, 604 F.
Supp. 2d 416, 427 (N.D.N.Y. 2009) (stating that "even pro se litigants must obey a district court's
procedural rules"). Without a Statement of Material Facts, Plaintiff has failed to support her
entitlement to summary judgment. See, e.g., Cross v. State Farm Ins. Co., 926 F. Supp. 2d 436,
452 (N.D.N.Y. 2013). Accordingly, Plaintiff's motion is denied.
Local Rule 7.1(a)(3) also requires a party opposing a motion to file a response admitting
or denying each of the numbered paragraphs in the movant's Statement of Material Facts. "Each
denial shall set forth a specific citation to the record where the factual issue arises. . . . 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 L.R. 7.1(a)(3). In opposition to
Defendant's motion, Plaintiff submitted an eight page document that does not reference
Defendant's Statement of Material Facts or any of the numbered paragraphs therein. See Dkt. No.
33. Plaintiff's opposition together with her affidavit attempts to address the factual assertions
contained within the affidavits submitted by Defendant, but Plaintiff does not provide specific,
supporting citations to the record. See id. As stated above, a litigant's pro se status does not
relieve them of the procedural requirements of Local Rule 7.1(a)(3). See Cross, 926 F. Supp. 2d
at 442; Govan v. Campbell, 289 F. Supp. 2d 289, 295 (N.D.N.Y. 2003) (noting that the courts of
the Northern District of New York strictly apply Local Rule 7.1(a)(3)). Consequently, the Court
accepts the properly supported facts stated in Defendant's Statement of Material Facts.
C.

Age Discrimination in Employment Act
1. Age Discrimination

6

The ADEA was created "to promote employment of older persons based on their ability
rather than age; to prohibit arbitrary age discrimination in employment; to help employers and
workers find ways of meeting problems arising from the impact of age on employment." 29
U.S.C. § 621. It is unlawful for an employer to "discriminate against any individual with respect
to his compensation, terms, conditions, or privileges of employment, because of such individual's
age." 29 U.S.C. § 623. The burden-shifting analysis set fort in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973) applies to claims for ADEA violations. See Delaney v. Bank of Am.
Corp., 766 F.3d 163, 167 (2d Cir. 2014) (citing Gorzynski v. JetBlue Airways Corp., 596 F.3d 93,
106 (2d Cir. 2010)). Under this three-step framework, the initial burden is on the plaintiff to
establish a prima facie case of age discrimination. See id. at 168.
To establish a prima facie case of age discrimination under the ADEA, the plaintiff must
demonstrate that he or she was in the protected age group of forty years or older, was qualified for
the position at issue, and suffered an adverse employment action, and that the identified adverse
action occurred under circumstances giving rise to an inference of discrimination. See D'Cunha
v. Genovese/Eckerd Corp., 479 F.3d 193, 194-95 (2d Cir. 2007) (citing Terry v. Ashcroft, 336
F.3d 128, 137-38 (2d Cir. 2003)); Carlton v. Mystic Transp., Inc., 202 F.3d 129, 134 (2d Cir.
2000) (citing Norton v. Sam's Club, 145 F.3d 114, 118 (2d Cir. 1998) abrogated in part by
Gorzynski, 596 F.3d at 106 (finding that the Supreme Court in Gross v. FBL Fin. Servs., Inc., 557
U.S. 167, 180 (2009) changed the last part of the age discrimination analysis)). The purpose of
the prima facie case is to create a presumption that, under these circumstances, an employer
considered impermissible factors and, thus, "unlawfully discriminated against the employee."
Texas Dept. of Comm. Affairs v. Burdine, 450 U.S. 248, 254 (1981). This initial burden must be
shown by a preponderance of the evidence, and the Second Circuit has characterized the burden
7

as "not onerous," Delaney, 766 F.3d at 168, "not heavy" or "minimal," Carlton, 202 F.3d at 134,
and "de minimis," Chambers v. TRM Copy Ctrs. Corps., 43 F.3d 29, 37 (2d Cir. 1994).
In this case, Plaintiff was fifty-four years old during the relevant time period, and it is not
in dispute that she was qualified for her position as an Academic Tutor II and clerical desk
assistant in the CTC. See Dkt. No. 27-4 at ¶¶ 3-5. Plaintiff claims that her removal from the
reception desk, which she was regularly scheduled in the evening for approximately sixteen hours
per week, was an adverse employment action. See Dkt. No. 1 at 6-8; Dkt. No. 12 at ¶ 45. An
adverse employment action is defined by the courts to be "a 'materially adverse change' in the
terms and conditions of employment." Sanders v. New York City Human Resources Admin., 361
F.3d 749, 755 (2d Cir. 2004) (citing Richardson v. New York State Dept. of Corr. Servs., 180 F.3d
426, 446 (2d Cir. 1999)). "To be materially adverse, a change in working conditions must be
'more disruptive than a mere inconvenience or an alteration of job responsibilities.'" Id. (quoting
Terry, 336 F.3d at 138). However, a materially adverse change under the ADEA encompasses
more than just a job termination or the reduction of wages. Wanamaker v. Columbian Robe Co.,
108 F.3d 462, 466 (2d Cir. 1997). Examples can also include "'a demotion evidenced by a
decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly
diminished material responsibilities, or other indices . . . unique to a particular situation.'"
Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000) (quoting Crady v.
Liberty Nat'l Bank & Trust Co., 993 F.2d 132, 136 (7th Cir. 1993)).
The Court finds that Plaintiff met her initial burden by showing that the loss of her
position at the evening reception desk with regularly scheduled shifts, totaling sixteen hours every
week, was more than a mere inconvenience or alteration of her job responsibilities. See, e.g.,
Little v. National Broad. Co., 210 F. Supp. 2d 330, 379 (S.D.N.Y. 2002) (finding that a change in
8

a work schedule that results in an actual loss of income can be a materially adverse employment
action). Plaintiff's regularly scheduled shifts at the evening desk were not changed to another
time, but she lost those hours. Her removal from that part of her employment with Defendant and
her actual loss of income sufficiently establishes a material adverse change in the terms and
conditions of her employment.
The last part of a prima facie case, requiring a plaintiff to establish that the adverse action
occurred under circumstances giving rise to an inference of discrimination, can be established by
showing that the plaintiff was replaced "by a significantly younger person." Carlton, 202 F.3d at
135 (citing O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 313 (1996)); see also
Papalia v. Milrose Consultants, Inc., No. 09 Civ. 9257, 2011 WL 6937601, *9 (S.D.N.Y. Dec.
29, 2011). Here, it is not in dispute that Plaintiff's evening shift at the reception desk was taken
over by a twenty-six year old man. See Dkt. No. 12 at ¶¶ 46, 60; Dkt. No. 27-4 at ¶ 14.
Accordingly, the Court finds that Plaintiff has established a prima facie case of age discrimination
under the ADEA and, thus, raised a rebuttable presumption of discrimination.
Under McDonnell Douglas, the burden then shifts to the defendant to "produce evidence
'which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for
the adverse action.'" Carlton, 202 F.3d at 136 (quoting St. Mary's Honor Ctr., 509 U.S. at 509). It
is axiomatic that the supporting or opposing materials submitted on a motion for summary
judgment "must be admissible themselves or must contain evidence that will be presented in
admissible form at trial." Delaney, 766 F.3d at 170 (internal citations and quotation marks
omitted); see also Texas Dept. of Cmty. Affairs, 450 U.S. at 255. With this evidence, "'[t]he
defendant need not persuade the court that it was actually motivated by the proffered reason []. It
is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it
9

discriminated against the plaintiff.'" Delaney, 766 F.3d at 168 (quoting Texas Dept. of Cmty.
Affairs, 450 U.S. at 254). Where a non-discriminatory reason is articulated by the defendant, "the
presumption of discrimination raised by the prima facie case 'simply drops out of the picture.'"
Carlton, 202 F.3d at 134-35 (quoting St. Mary's Honor Ctr., 509 U.S. at 510-11).
Defendant contends that Plaintiff's claims should be dismissed because, even assuming
Plaintiff established a prima facie case of age discrimination, Defendant has "proffered three
legitimate, nondiscriminatory reasons for any adverse employment action against [P]laintiff"
satisfying its burden under Delaney, 766 F.3d 163. See Dkt. No. 27-3 at 5-17. Defendant
submitted the sworn affidavit of Karen Hale, who was the person responsible for the removal of
Plaintiff from the evening reception desk, and she proffered three non-discriminatory reasons for
removing Plaintiff from the reception desk. See Dkt. No. 27-4 at ¶ 5. First, Karen Hale cited
Plaintiff's history of being difficult to "deal with personally, including hostility to [Plaintiff's]
supervisor, Wendy Hammond, and to another tutor." See id. Plaintiff's hostility was the cause of
several conflicts where voices were raised and papers were thrown. See id. Second, Karen Hale
suspected that Plaintiff improperly accessed confidential information contained in personnel files
that were maintained at the reception desk. See id. Third, Karen Hale interpreted some of
Plaintiff's statements about a student as racially insensitive. See id. Based on this admissible
evidence, the Court finds that Defendant has articulated legitimate, non-discriminatory reasons
for Plaintiff's removal from the reception desk.2

In opposition to Defendant's motion, Plaintiff submitted a request to strike the affidavits
submitted by Defendant because they contain information not previously disclosed. Plaintiff does
not cite to any valid evidence that Defendant violated the discovery order set by Magistrate Judge
David E. Peebles. Consequently, there is no valid basis to strike the affidavits. Plaintiff also
summarily asserts that Karen Hale's affidavit contained inadmissible hearsay. See Dkt. No. 33 at
¶ 6. Without reference to any particular statement, the Court declines to make line by line
hearsay rulings on Karen Hale's affidavit. However, the Court has considered only evidence that
2

10

Without the presumption of the plaintiff's prima facie case of discrimination, "the burden
shifts back to the plaintiff to offer proof 'through presentation of his [or her] own case and
through cross-examination' that would allow a rational factfinder to conclude that the proffered
reason was not the true reason for the adverse employment action, and that age was." Carlton,
202 F.3d at 135; see also Delaney, 766 F.3d at 168 (stating that the plaintiff must prove that the
proffered reason is a "pretext" for age discrimination); Gorzynski, 596 F.3d at 106. "'[A] plaintiff
bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of
the evidence, that age was the "but-for" cause of the challenged adverse employment action' and
not just a contributing or motivating factor."3 Gorzynski, 596 F.3d at 406 (quoting Gross, 557
U.S. at 180 (finding that, "[t]he burden of persuasion does not shift to the employer to show that it
would have taken the action regardless of age, even when a plaintiff has produced some evidence
that age was one motivating factor in that decision")).
In this case, Defendant has demonstrated through properly submitted evidence that
Plaintiff was removed from the evening reception desk for a non-age related reason. Specifically,
Defendant submitted admissible evidence that Plaintiff's removal was cause by her discord with
her supervisor, Wendy Hammond, and another tutor, Paula Gould, in the Fall of 2012. See Dkt.
No. 27-4 at ¶ 5. These problems led to rude behavior, confrontations with loud voices, and
incidents of throwing papers. See id.; Dkt. No. 27-5 at ¶ 5. Karen Hale decided that Plaintiff was

would be admissible at trial. See Delaney v. Bank of Am. Corp., 766 F.3d 163, 170 (2d Cir.
2014).
Prior to Gross, a plaintiff had to prove that age was one of the motivating factors in the
adverse employment action; a plaintiff did not have to prove that age was the principal factor in
the adverse employment action. See Carlton, 202 F.3d at 135. In Gross, the Second Circuit
acknowledged the change in the last part of the age discrimination framework and found that a
plaintiff must prove that age was a "but-for" cause of the adverse employment action. See
Gorzynski, 596 F.3d at 106.
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not an appropriate person to represent the CTC at the reception desk and removed her on October
23, 2012. See Dkt. No. 27-4 at ¶¶ 5, 8. Karen Hale and Wendy Hammond specifically affirmed
that Plaintiff's age was not a factor in the decision to remove Plaintiff from the evening reception
desk hours. See id. at ¶ 18; Dkt. No. 27-5 at ¶ 17. Defendant also submitted the affidavit of John
Geer, the Director of Human Resources, which stated that his office received Plaintiff's complaint
alleging rude behavior by Wendy Hammond but that it did not reference any age-related hostility.
See Dkt. No. 27-6 at ¶ 11. John Geer also affirmed that the positions of Academic Tutors II,
which was Plaintiff's position, are held by employees whose ages range from eighty-five to
twenty-two. See id. at ¶ 12.
In opposition, Plaintiff does not disputed that she had a tumultuous work relationship with
Wendy Hammond.4 See Dkt. No. 1 at 7. Although Plaintiff presents that Wendy Hammond
caused their work relationship problems, Plaintiff does not assert that any age-related hostility
was directed at her. See id. Plaintiff has not come forward with any evidence that Defendant's
proffered reason for the reduction of her working hours was a pretext for age discrimination.
Accordingly, she has not raised a genuine issue of material fact that her age was a "but-for" cause
of the challenged adverse employment action.5

While the Court will not search the record for evidence not properly presented by
Plaintiff pursuant to Local Rule 7.1(a)(3), it also will not ignore evidentiary material raised by
Plaintiff that the Court has reviewed in this matter. See Cusamano v. Sobek, 604 F. Supp. 2d 416,
431 (N.D.N.Y. 2009).
4

Defendant proffers two additional reasons for the reduction of Plaintiff's hours.
Defendant claims that Plaintiff made racially insensitive comments about a student that came into
the CTC during the evening hours and that Plaintiff improperly accessed confidential information
in personnel files. See Dkt. No. 27-4 at ¶ 5. Having found that Plaintiff has not provided any
evidence that age discrimination – and not Plaintiff's poor working relationship with her
supervisor – was the "but for" reason for her removal from the evening hours at the reception
desk, the two remaining proffered reasons are not determinative of this decision.
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2. Retaliation
Ostensibly, Plaintiff also claims that after she filed a "Notice of Intent" with the EEOC in
November 2012, Defendant retaliated against her by effectively reducing her tutoring hours. See
Dkt. No. 1 at 10. The ADEA prohibits an employer from discriminating "against any of his
employees . . . because such individual . . . opposed any practice made unlawful" under the Act.
Boland v. Town of Newington, 304 Fed. Appx. 7, 9 (2d Cir. 2008) (citing 29 U.S.C. § 623(d)).
Retaliation claims under the ADEA are also analyzed under the McDonnell Douglas three-step
framework. See Wanamaker v. Columbian Rope Co., 108 F.3d 462, 465 (2d Cir. 1997). This
burden-shifting analysis applies to a claim for retaliation whether under the ADEA or Title VII
(42 U.S.C. § 2000e-3(a)). See Kessler v. Westchester Ctny. Dept. of Soc. Servs., 461 F.3d 199,
205 (2d Cir. 2006); Wanamaker, 108 F.3d at 465.
Plaintiff has the burden to "establish a prima facie case with de minimis evidence."
Wanamaker, 108 F.3d at 465. The elements of a prima facie retaliation claim under the ADEA
are as follows: (1) the plaintiff engaged in an act protected by the ADEA; (2) the plaintiff's
employer knew that the plaintiff was engaged in a protected activity; (3) the employer undertook
an adverse employment action against her and (4) "a causal connection exists between the
protected activity and the adverse action, i.e., that a retaliatory motive played a part in the adverse
employment action." Kessler, 461 F.3d at 205-06 (internal quotation marks omitted) (citing Cifra
v. Gen. Elec. Co., 252 F.3d 205, 216 (2d Cir. 2001)); Wanamaker, 108 F.3d at 465.
A plaintiff does not have to show an actual violation of the ADEA in order to establish her
participation in a protected activity. See Grant v. Hazelett Strip-Casting Corp., 880 F.2d 1564,
1569 (2d Cir. 1989). In this case, Plaintiff's act of filing an EEOC charge in November 2012 is a

13

protected activity.6 See Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001). The Court
can infer that Defendant was aware that a charge was filed with the EEOC because the
Commission is statutorily required to "promptly notice all persons named in such charge." See 29
U.S.C. § 626(d)(2). Also, Defendant responded to the EEOC charge in or about February 2013.
See Dkt. No. 1 at ¶ 62; Dkt. No. 12 at ¶ 62.
As discussed, for an employer's action to be considered adverse in an anti-discrimination
claim, the act must affect the terms and conditions of employment. Although the Second Circuit
had initially adopted this same standard to apply in ADEA retaliation claims, see, e.g.,
Fairbrother v. Morrison, 412 F.3d 39, 56 (2d Cir. 2005); Richardson, 180 F.3d at 446, the
Supreme Court has since defined a retaliatory adverse action in broader terms. See Burlington N.
& Santa Fe Railway Co. v. White, 548 U.S. 53, 64-65 (2006). In a retaliation claim, an
employer's adverse action "must be harmful to the point that they could well dissuade a
reasonable worker from making or supporting a charge of discrimination." Id. at 57 (reasoning
that a "provision limited to employment-related actions would not deter the many forms that
effective retaliation can take"). Therefore, the question here is whether the Defendant's acts
against Plaintiff could have dissuaded a reasonable employee in her position from filing a charge
with the EEOC. Plaintiff claims that Defendant hired an additional tutor in the areas of
architecture and interior design and that Wendy Hammond wait-listed two potential students in

To the extent that Plaintiff claims that the filing of her informal, human resources
complaint via email on October 29, 2012 is a protected act, the Court finds that it was not. The
informal complaint reports that Plaintiff and Wendy Hammond have a hostile work relationship
and, at most, describes being treated unfairly. See Dkt. No. 29 at 26. However, the
correspondence does not reference or indicate unlawful discriminatory practices. See, e.g.,
Mabry, 769 F. Supp. 2d at 397 n.2 (finding that, although informal protests of unlawful
discrimination can be a protected activity, email that does not show age-motivated, unfair
treatment does not qualify).
6

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interior design.7 See Dkt. No. 1 at 10. The Court finds that these actions make out a prima facie
claim.
The Court finds that, for purposes of establishing a prima facie case, there is evidence of a
causal connection between the protected activity and the hiring of an additional tutor. The
Plaintiff's evidence presented to the Court on this motion does not establish exact dates of the
alleged acts of withholding tutoring students and hiring another tutor. However, a causal
relationship can be established "'by showing that the protected activity was closely followed in
time by the adverse employment action,'" Gorzynski, 596 F.3d at 110 (quoting Gorman-Bakos v.
Cornell Coop. Extension of Schenectady Ctny., 252 F.3d 545, 554 (2d Cir. 2001)). Here, there is
no evidence to indicate whether the acts of withholding students took place before or after
Defendant knew Plaintiff filed a charge with the EEOC. Therefore, no inference of causal
connection can be drawn between these two acts, and Plaintiff's claim fails on those allegations.
However, in the Statement of Material Facts, Defendant established that another architectural
technology tutor was hired in the Spring 2013 semester. See Dkt. No. 27-2 at ¶ 31. This is
enough to establish a temporal relationship between the filing of the EEOC charge in November
2012 and the hiring of another tutor in the Spring 2013 semester. See Gorzynski, 596 F.3d at 110
(noting that a period of five months is not too attenuated to establish a temporal relationship of
causation in a prima facie retaliation case).
The McDonnell Douglas framework then shifts the burden to Defendant to "articulate a
legitimate nondiscriminatory reason" for its actions. See id. at 111. Here, Defendant has met this

To the extent that Plaintiff claims that the loss of her hours at the evening reception desk
was an act of retaliation, the Court finds that it was not an adverse action taken in retaliation for
filing an EEOC charge because she lost those hours in October 2012 before Plaintiff filed a
complaint or the EEOC charge. See Dkt. No. 1.
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burden. Defendant submitted an affidavit from Tutor Coordinator, Ted Mathews, in which he
affirms that this new tutor was not hired to replace Plaintiff. See Dkt. No. 27-2 at ¶ 31. Instead,
Defendant explains that the hiring of more than one tutor in a discipline is done as a normal part
of CTC operations to meet the student demand. See id. According to Ted Mathews, several
students were not able to come for tutoring during Plaintiff's posted availability due to scheduling
conflicts. See Dkt. No. 27-6 at ¶ 5.
Finally, the burden shifts back to Plaintiff to "produce evidence that casts significant
doubt," leaving a triable issue as to whether Defendant retaliated against her for filing a charge
with the EEOC. See Gorzynski, 596 F.3d at 111. Defendant has established through submitted
evidence that Plaintiff continued to work in the CTC as a temporary, part-time employee through
the Spring 2013 semester. See Dkt. No. 27-2. Plaintiff was not terminated but did not return to
the CTC for the Fall 2013 semester. See id. at ¶¶ 33-34. In her opposition papers, Plaintiff
acknowledges that she did not provide her availability for the Fall 2013, Spring 2014, and Fall
2014 semester to the proper person. See Dkt. No. 33-1 at ¶ 12. Plaintiff implies that Defendant
had a duty to inform her that she sent her information to the wrong person. See id. The Court
disagrees. With over 120 tutors employed by Defendant in the CTC, it is not suspect that no one
personally contacted Plaintiff when her availability was not received. See Dkt. No. 27-2 at ¶ 32.
On Defendant's motion, Plaintiff does not raise any other relevant evidence to her retaliation
claim.8

In support of Plaintiff's motion for summary judgment, she attached email
correspondence presumably between an adjunct teacher, Randy Frech, and the CTC Coordinator,
Daniel Bartlett, regarding Plaintiff's tutoring availability during the Spring 2013 semester. See
Dkt. No. 29 at 23. If this evidence were properly presented in opposition to Defendant's motion
for summary judgment, it would not defeat Defendant's motion. The correspondence provides
further support that the CTC did not have enough tutoring availability for their students'
architecture classes. See id.
8

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IV. CONCLUSION
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 is GRANTED; and the Court
further
ORDERS that Plaintiff's motion for summary judgment is DENIED; and the Court
further
ORDERS that the Clerk of the Court shall enter judgment in Defendant's favor and close
this case; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on the parties in accordance with the Local Rules.

IT IS SO ORDERED.
Dated: June 22, 2016
Albany, New York

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