Sears-Barnett v. Syracuse Community Health Center, Inc. et al
MEMORANDUM-DECISION & ORDER: that Plaintiff Tisha Sears-Barnett's Claims under Counts: (I) hostile work environment in violation of Title VII; (III) retaliation in violation of Title VII; (V) discrimination in violation of the ADA and the Rehabi litation Act; and (VII) retaliation in violation of the ADA and the Rehabilitation Act are DISMISSED WITH PREJUDICE; Counts (II) sex discrimination under the NYSHRL; (IV) retaliation for a sexual harassment complaint under the NYSHRL; (VI) disability discrimination under the NYSHRL; (VIII) disability retaliation under the NYSHRL; (IX) intentional infliction of emotional distress; and (X) negligence and gross negligence are REMANDED to New York State Supreme Court, Onondaga County; and The Clerk of Court is directed to enter judgment accordingly, forward this decision and the case file to the New York State Supreme Court, Onondaga County, and close the case file. Signed by Judge David N. Hurd on 3/31/2021. (Copy served upon Onondaga County Supreme Court via regular mail on 3/31/2021)(see)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
SYRACUSE COMMUNITY HEALTH
CENTER, INC., JOCELYN SHANNON,
JOHN DOE(S), and JANE DOE(S),
BOSMAN LAW FIRM, LLC
Attorneys for Plaintiff
3000 McConnellsville Road
Blossvale, New York 13308
AJ BOSMAN, ESQ.
HANCOCK ESTABROOK, LLP
Attorneys for Defendants
1800 AXA Tower I
100 Madison Street
Syracuse, New York 13202
LINDSEY H. HAZELTON, ESQ.
WHITNEY M. KUMMEROW, ESQ.
DAVID N. HURD
United States District Judge
MEMORANDUM-DECISION and ORDER
Plaintiff Tisha Sears-Barnett 1 (“Sears-Barnett” or “plaintiff”) worked as
an accountant for defendant Syracuse Community Health Center, Inc.
(“SCHC”) from April 12, 2012 until November 27, 2014. For most of her time
with SCHC, Jocelyn Shannon (“Shannon” and together with SCHC
“defendants”) was her supervisor. According to plaintiff, Shannon would
routinely sexually harass her, and that sexual harassment ranged from
making suggestive comments to slapping her backside.
Sears-Barnett complained to SCHC’s human resources director about
Shannon’s behavior, which led to Shannon’s being disciplined and removed as
plaintiff’s supervisor. Not long after that, plaintiff injured her foot due to a
malfunctioning filing cabinet in the office. Plaintiff alleges that defendants
created a hostile work environment between their mishandling of Shannon’s
sexual harassment and their mistreatment of plaintiff after she injured her
foot on the job.
As a consequence, plaintiff brought a ten-count complaint on September
10, 2015, alleging: (I) a hostile work environment under Title VII of the Civil
Rights Act of 1963 (“Title VII”); (II) sex discrimination under the New York
Plaintiff changed her legal last name from Sears-Barnett to Armstrong during the course of
this litigation. For clarity’s sake, the Court will continue to refer to her as Sears-Barnett, the name
she used in the complaint and her name in this case’s caption.
State Human Rights Law (“NYSHRL”); (III) retaliation under Title VII;
(IV) sex retaliation under the NYSHRL; (V) disability discrimination under
the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act of
1973 (“Rehabilitation Act”); (VI) disability discrimination under the
NYSHRL; (VII) retaliation under the ADA and the Rehabilitation Act;
(VIII) disability retaliation under the NYSHRL; (IX) intentional infliction of
emotional distress; and (X) negligence and gross negligence.
Initially, Sears-Barnett filed her complaint in New York State Supreme
Court, Onondaga County. But because plaintiff brought some federal claims,
defendants removed the case to federal court. Eventually, defendants moved
for summary judgment against the entirety of plaintiff’s complaint, and the
Court heard oral argument for that motion. Defendants’ motion will now be
decided on the parties’ submissions and oral arguments.
SCHC brought Sears-Barnett onboard as an accountant on April 12,
2012. 2 Dkt. 52-5, Defendants’ Statement of Material Facts (“DSMF”), ¶ 1. As
an accountant, plaintiff was placed in the Finance Department, which was
Shannon’s supervisory domain. Id. ¶¶ 1-2.
The facts are taken from defendants’ statement of material facts where admitted by plaintiff, or
from other record evidence. Disputed facts are flagged and supported by citations to either the
proponent’s statement of material facts or to record evidence.
Shannon’s leadership was not without its critics, and those critics included
both male and female staff members. DSMF ¶ 5. According to
Sears-Barnett, one particularly illustrative example of Shannon’s
management style involved her using several derogatory terms for
homosexuals in an altercation with a male employee. Dkt. 61-8, Plaintiffs’
Statement of Material Facts (“PSMF”) ¶ 5, but see Dkt. 61-7 (“Williams
Dep.”), pp. 67-69 3 (plaintiff’s counsel asking SCHC human resources director
whether Shannon had used derogatory terms, with employee initially
agreeing, but ultimately stating he did not remember and only remembered
reports of Shannon cursing).
Like most workplaces, SCHC maintains anti-harassment and anti-sexual
assault policies to deal with precisely those types of altercations. DSMF ¶ 6.
Sears-Barnett does not dispute that she received copies of those policies.
Id. ¶ 7.
Sears-Barnett first turned to SCHC’s complaint mechanisms at the end of
2013. DSMF ¶ 10. Plaintiff had planned to take a paid day off on November
1 of that year. Dkt. 52-2 (“Williams Aff.”), p. 37. Despite plaintiff apparently
requesting the time off on September 3, 2013, her request was never
approved, and she was docked eight hours’ pay on her next paycheck.
Pagination corresponds with CM/ECF.
Id. at 31, 37. Plaintiff lays the blame for her bungled time off request at
Shannon’s feet. Id. at 25.
Apparently, Shannon’s docking Sears-Barnett’s pay created financial
difficulties for her, including causing her to overdraft her bank account.
Williams Aff. pp. 32-33. To fix this mistake, plaintiff sent at least eight
emails to Craig Williams (“Williams”), SCHC’s Director of Human Resources,
between November 21 and December 11, 2013. Id. ¶ 1, see id. at 25-32. On
November 22, 2013, plaintiff also sent a memorandum to Dr. Ruben Cowart
(“Dr. Cowart”), SCHC’s president and CEO, to apprise him of her difficulties
seeking reimbursement for her leave. Id. at 37, 42. Ultimately, SCHC paid
plaintiff both for her docked pay and the overdraft fees. Id. at 32-33.
If the time off dispute created bad blood between Sears-Barnett and
Shannon, their employment dynamic shattered beyond repair in February of
2014. Plaintiff alleges that on the afternoon of February 11, 2014, Shannon
winked at her and slapped her on the backside. Williams Aff. p. 39. In
addition, she claims that on February 12 Shannon stood close to her with her
“arms wrapped around [plaintiff’s] right shoulder.” Williams Aff. p. 40.
According to plaintiff, Shannon then leaned closer and said she was “trying to
behave and keep [her] hands to [her]self” but that she was “having an issue.”
That same day, Sears-Barnett complained to Williams that Shannon had
sexually harassed her during at least the February 11 and February 12
incidents. DSMF ¶ 12. The parties do not argue over whether plaintiff told
Williams about her encounters with Shannon on February 11 or 12 of 2014.
Id. ¶ 13. Nor could they. She sent Williams a pair of emails, one elaborating
on each incident, the same day she complained to him.
Williams Aff. pp. 39-40. But whether those two incidents were the only ones
brought to Williams’ attention is a more contentious story.
Sears-Barnett alleges not only that were there a host of other incidents of
Shannon harassing her, but that she told Williams of each of them.
PSMF ¶ 14. Plaintiff affirms that she told Williams that Shannon had
previously slapped her backside on February 5, 2014, and had also
unbuttoned her shirt in front of her in the summer of 2012 and asked her if
she “liked it.” Dkt. 61 (“Pl. Aff.”) ¶¶ 8, 11. Plaintiff’s affirmation also lists a
number of further transgressions, including Shannon invading plaintiff’s
personal space, rubbing her arms, Shannon pressing her breasts against
plaintiff, kissing plaintiff’s forehead, and talking about the type and color of
the underwear Shannon was wearing. Id. ¶ 4.
A skeptical reader might ask why Sears-Barnett did not write about those
incidents while sending Williams the emails detailing Shannon’s alleged
harassing behaviors. To those skeptics, plaintiff would answer that Williams
told her to only reduce the February 11 and 12, 2014 incidents to writing.
Dkt. 61-4 (“Pl. Dep.”), p. 124.
It must be said, however, that Sears-Barnett’s narrative is a bit murky on
that score. At her deposition, plaintiff first testified that Williams told her to
email him concerning Shannon’s alleged harassment to reduce “anything” she
could remember to writing. Pl. Dep. 55. Plaintiff also initially testified that
she did not remember telling Williams about anything beyond the two
incidents that are reflected in her emails, and about the male coworker who
Shannon apparently subjected to homophobic slurs. Pl. Dep. 61-63.
Later in her deposition—and after the parties broke for lunch,
Pl. Dep. 76—Sears-Barnett testified that she verbally told Williams about the
additional harassing encounters. Id. at 122. He apparently then told her to
“write down what happened as of the incident in February.” Id. Only when
defendants’ counsel probed the issue a third time did plaintiff testify that
Williams only told her to put the February 11 and 12, 2014 incidents down in
writing. Id. at 124.
Sears-Barnett also claims that she spoke to Williams again on February
26, 2014, concerning the progress of his investigation into her complaint
against Shannon. Dkt. 61-1, p. 8. Plaintiff sent herself an email that same
day describing her conversation with Williams, and the allegations of
harassment that she described to him. Id. The email appears to be redacted,
or at the very least the version in the record has lines missing from it. Id.
But from the available text, the email recounts plaintiff telling Williams
about Shannon’s slapping her backside on February 5, 2014, and about the
unbuttoned blouse incident in the summer of 2012. Id. To summarize,
plaintiff argues that the evidence shows that Williams knew of every incident
of harassment she claims Shannon subjected her to, and that she reported it
to him on multiple occasions in February of 2014.
Predictably, for their part defendants claim that Williams did not know of
any potential sexual harassment by Shannon against Sears-Barnett beyond
the incidents on February 11 and 12. DSMF ¶ 14. In support of that
assertion, defendants point to Williams’ deposition, in which he denied ever
being told about Shannon unbuttoning her shirt in front of plaintiff.
Williams Dep. 52. In fact, he denied that plaintiff told him about anything
beyond being “bumped into” and being “patted on her buttocks.” Id. at 53.
Whatever the extent of his knowledge as to Shannon’s misconduct was,
Williams conducted an investigation into her behavior during the early
months of 2014. DSMF ¶ 15. As part of that investigation, Shannon
admitted to patting Sears-Barnett’s backside on one occasion, and to using
profanity in an argument with a male employee. Id. ¶¶ 16-17.
On April 2, 2014, Williams’ investigation came to a close.
Williams Aff. p. 46. As a result of Sears-Barnett’s allegations of sexual
harassment, SCHC issued Shannon a final written warning (the “final
warning”). Id. That warning required that Shannon maintain strict
adherence to SCHC’s sexual and general harassment policies, as well as its
global rules of conduct. Id. The final warning cautioned that “[c]ontinued
instances of [harassing] conduct will not be tolerated and will result in
immediate termination of employment.” Id. According to Williams, he did
not fire her outright because it was her first offense, and he believed that the
conduct he had been presented with was insufficiently severe to merit an
automatic firing. Williams Dep. 51.
Sears-Barnett received confirmation of Shannon’s discipline from Dr.
Cowart, SCHC’s president and CEO, on April 3, 2014, and then from
Williams on April 9, 2014. Williams Aff. pp. 48, 50. Williams’ letter told
plaintiff that he “determined” that “Shannon’s conduct . . . is considered
unwelcomed, unprofessional, unacceptable,” and not in SCHC’s best interest.
Id. at 48. The letter went on to explain that Shannon received “the
appropriate corrective action” and that “continued instances of [her] conduct
will not be tolerated and will result in immediate termination of [Shannon’s]
employment should there be a repeat occurrence.” Id.
In the immediate aftermath of Williams’ investigation into Shannon,
another of Sears-Barnett’s coworkers took over as her supervisor.
DSMF ¶ 23. 4 It was also “suggested” to Shannon that she should not have
direct contact with plaintiff, but if she did “it needed to be in a meeting
format.” Dkt. 61-6 (“Shannon Dep.”), p. 23. If she did have any contact with
plaintiff, she was told there needed to be someone else present as well.
Id. at 23-24. According to plaintiff, the net result of this directive was that
she felt “invisible” to Shannon, but she can remember no other specific
altercations between the two of them after April 9 but before May 24 of 2014.
Pl. Dep. 75-76.
But May 27th brought with it a seismic shift in Sears-Barnett’s
employment at SCHC. On that day, plaintiff injured herself in the office.
DSMF ¶ 27. More specifically, a drawer fell out of a filing cabinet plaintiff
was using and onto her foot, breaking her foot. Pl. Dep. 83-85.
On May 28, 2014, Sears-Barnett applied for and received leave under the
Family and Medical Leave Act (“FMLA”) because of her injured foot.
DSMF ¶ 28. Plaintiff’s FMLA leave lasted until August 18, 2014. Id. ¶ 29.
Shortly before plaintiff’s leave ran out, she submitted a doctor’s note laying
Plaintiff nominally disputes this fact. To hear her tell it, this fact is not material, because
Shannon remained employed by SCHC, which made her feel unsafe. Plaintiff’s response to this fact
is improper twice over. First, this fact is material. Plaintiff brings a hostile work environment claim
under Title VII, and as discussed below SCHC’s response to her complaints is important evidence of
her work experience as a whole. Second, nothing about plaintiff’s feeling unsafe with Shannon
remaining employed makes defendants’ factual statement inaccurate. Because “[t]he 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 deems this fact admitted. Local Rule of
the Northern District of New York (“Local Rule”) 56.1(b).
out the accommodations she would need to be able to return to work.
Id. ¶ 30. SCHC provided accommodations in the form of limiting plaintiff’s
time spent standing to no more than three five-minute periods per hour,
permitting her to perform sedentary work, and requiring her to walk only on
a limited basis. Dkt. 52-3, p. 17.
So accommodated, Sears-Barnett returned to work on August 18, 2014.
DSMF ¶¶ 31-32. But plaintiff’s second stint at the office proved to be
short-lived. A few hours into the workday, plaintiff left, citing a need for
medical care. DSMF ¶ 33. Plaintiff was treated at SCHC, where she
presented with a headache, dizziness, eye pain, and complained of feeling like
she might pass out. Dkt. 61-1, p. 31.
Plaintiff had no direct contact with Shannon on August 18, 2014.
DSMF ¶ 34. In fact, she has never had direct contact with Shannon since
May of 2014 except in the process of litigating this case. See id. ¶ 35. Even
so, plaintiff claims that Shannon did not cooperate with efforts to help
plaintiff log into her computer and made comments to others in her area that
plaintiff overheard. PSMF ¶ 35. Plaintiff specifically alleges that Shannon
said “[o]h she’s here” in a sarcastic tone. Pl. Aff. ¶ 19.
On August 20, 2014, Sears-Barnett had scheduled to take a day off for
personal reasons. Dkt. 61-1, p. 29. SCHC had approved that day off well in
advance. Id. at 28. But Shannon retracted that time off on August 18 at
11:03 a.m., because there was “work piled up” and plaintiff had “been out of
work for several weeks.” Id. at 27-28. A human resources employee at SCHC
promptly responded that it was improper to deny an employee’s leave request
because she took FMLA leave, and recommended that Shannon re-approve
the time off request, calling Shannon’s retraction of approval “not good
practice.” Id. Shannon replied in that same email chain that she never had
any intent to deny plaintiff FMLA leave. Id. It is unclear on the record
whether plaintiff’s leave was re-approved.
In any case, on August 21, 2014, Sears-Barnett advised SCHC’s human
resources department that she was being excused from work again because of
her foot injury. DSMF ¶ 37. She would never return to work at SCHC again.
Id. ¶ 36. Because plaintiff had already used up her FMLA leave, SCHC
notified her that she needed to be placed on inactive status to permit her
absence. Id. ¶ 38.
Several months followed with no contact between Sears-Barnett and
SCHC regarding the scope and nature of her ongoing disability. DSMF ¶ 39.
Plaintiff did not claim that she had been cleared to return to work, nor did
she request any accommodations in the months following her unsuccessful
attempt to return to the office. Id. Indeed, plaintiff was not cleared to return
to work until December of 2015. Id. ¶ 41. Plaintiff also cannot recall any
accommodation requests that defendants failed to meet during this
timeframe. Pl. Dep. 121.
Finally, after months of radio silence, she received a letter from Williams
dated December 1, 2014. Williams Aff. p. 52. That letter notified plaintiff
that “[a]ccording to [SCHC policy[,] employees are eligible to remain on
inactive status for up to six months from the original date of disability . . . .”
Id. Once those six months were up, the letter claimed that SCHC’s policy
called for termination. 5 Id. Plaintiff was initially disabled on May 27, 2014,
so according to Williams, her six months were up as of November 27, 2014.
By extension, plaintiff would have to be terminated effective as of that date.
Shannon had no role in Sears-Barnett’s firing, because she lacked the
capacity to hire or fire her. 6 DSMF ¶ 44. The record evidence also indicates
that decisions as to plaintiff’s accommodations and medical leave were routed
Plaintiff objected to defendants’ statement of material facts to the extent that this policy actually
existed. Plaintiff’s objections are pure argument, and she does not cite to any record evidence
indicating that this policy does not, in fact, exist. The Court can draw its own conclusions as to the
existence of that policy, and plaintiff’s objection does not raise a dispute of material fact. That objection
See, e.g., LaFever v. Clarke, --- F. Supp. 3d ---, 2021 WL 921688, at *10
(N.D.N.Y. Mar. 11, 2021) (noting that response to statement of material facts was improper where it
attempted to inject party’s conclusions about evidence instead of countering statement of fact with
6 Once again, plaintiff objects to this fact as “not material.” Plaintiff appears to be conflating
“not material” with “not advantageous to her case.” Although she is correct that the ability to hire
and fire is not the alpha and the omega of the supervisory inquiry, it is still relevant to that inquiry.
See, e.g., Ward v. Shaddock, 2016 WL 4371752, at *10 (S.D.N.Y. Aug. 11, 2016) (noting that ability to
hire, fire, or “effect a tangible change in [the employee’s] terms or conditions of employment” are
relevant to supervisory inquiry for vicarious liability under Title VII). Because plaintiff did not
provide a citation to record evidence indicating that Shannon did have the ability to hire or fire, the
Court may—and does—deem this fact admitted. Local Rule 56.1(b).
through the supervisor appointed to oversee plaintiff after April 9, 2014, as
well as through SCHC’s human resources. See Dkt. 61-1, pp. 21-25 (email
chain demonstrating considerations of plaintiff’s leave and disability
decisions being made by SCHC employees other than Shannon). However, as
plaintiff correctly points out, Shannon’s ability to retract plaintiff’s grant of
leave on August 18, 2014, suggests that she did not cede all of her authority
over plaintiff’s employment status. PSMF ¶ 46; Dkt. 61-1, pp. 27-29 (emails
concerning Shannon’s retraction of plaintiff’s leave).
Sears-Barnett filed a complaint with the New York State Division of
Human Rights in March of 2015. DSMF ¶ 48. Plaintiff received a right to
sue letter on June 11, 2015. Dkt. 2, ¶ 6. Granted permission by that letter,
plaintiff brought the present complaint in New York State Supreme Court,
Onondaga County, on September 10, 2015. Dkt. 2. Defendants removed this
case to federal court on April 13, 2016, relying on plaintiff’s Title VII, ADA,
and Rehabilitation Act claims for jurisdiction. Dkt. 1. Defendants moved for
summary judgment at the close of discovery, and the Court heard oral
argument on that motion. Dkt. 52.
Summary judgment under Rule 56 is warranted if the entirety of the
parties’ submissions show “that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.”
Johnson v. Killian, 680 F.3d 234, 236 (2d Cir. 2012) (citing
FED. R. CIV. P. 56(a)). A fact is “material” if it “might affect the outcome of
the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). And a dispute of a material fact is “genuine” if “the
evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Id. The movant bears the burden of pointing the court to
the materials that it believes demonstrate the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Additionally, a court considering a summary judgment motion “must
resolve any ambiguities and draw all inferences from the facts in a light most
favorable to the nonmoving party.” Ward v. Stewart, 286 F. Supp. 3d 321,
327 (N.D.N.Y. 2017) (citing Jeffreys v. City of New York, 426 F.3d 549, 553
(2d Cir. 2005)). Even so, a non-movant’s conclusory allegations without
support from record evidence are insufficient: the non-movant must “put up
or shut up.” Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000). At
bottom, summary judgment tasks the Court with assessing the assembled
evidence and determining whether a reasonable factfinder could find in the
nonmovant’s favor. Treglia v. Town of Manlius, 313 F.3d 713, 719
(2d Cir. 2002).
Defendants argue that Sears-Barnett has failed to present evidence
demonstrating a genuine dispute of material fact for any of her claims. Those
claims come under both state and federal law. But this being a federal court,
with jurisdiction inherently limited by the federal structure, the Court will
first consider her federal claims. Should any of those claims survive to
sustain federal jurisdiction, the Court will consider defendants’ motion as to
her state law claims.
Sears-Barnett’s federal claims come under four headings. Plaintiff
brings: (1) a Title VII hostile work environment claim; (2) a Title VII
retaliation claim; (3) a disability discrimination claim under the ADA and
Rehabilitation Act; and (4) a retaliation claim under both the ADA and the
Rehabilitation Act. However, before the Court gets into the merits on any of
plaintiff’s claims, the first question to be answered is whether she can bring
those claims against Shannon, an individual.
A. Plaintiff’s Individual Claims
It is immediately clear that Sears-Barnett cannot. The Second Circuit has
left no doubt that “individuals are not subject to liability under Title VII.”
Sassaman v. Gamache, 566 F.3d 307, 315 (2d Cir. 2009) (internal citations
omitted). Although the Circuit has been less forthcoming about individual
liability under the ADA, at the least it has held that its retaliation provision
borrows from Title VII to such an extent that individual liability is also
unavailable to retaliation claims. Spiegel v. Schulmann, 604 F.3d 72, 79
(2d Cir. 2010) (holding that “the retaliation provision of the ADA . . . cannot
provide for individual liability”).
Based on the Second Circuit’s guidance thus far, district courts under its
supervision have routinely held that there is no individual liability at all
under the ADA or the Rehabilitation Act. Thomas v. New York City Dep’t of
Educ., 938 F. Supp. 2d 334, 354-55 (E.D.N.Y. 2013) (collecting cases for
proposition that courts in this Circuit do not typically allow ADA claims
against individuals); J.L. ex rel. J.P. v. New York City Dep’t of Educ.,
324 F. Supp. 3d 455, 467 n.4 (S.D.N.Y. 2018) (holding no individual liability
for Rehabilitation Act).
Sears-Barnett has not meaningfully advocated for this Court to deviate
from that routine practice. Instead, she argues that Shannon would be liable
under the NYSHRL as an aider and abettor. The Court may revisit that
issue if the need arises, but for the purposes of her federal claims plaintiff
appears to have conceded that the weight of case law is against her.
Accordingly, plaintiff’s Title VII, ADA, and Rehabilitation Act claims under
Counts I, III, V, and VII must be dismissed against Shannon. 7 In other
words, plaintiff must prove that SCHC itself is liable for the torts she alleges.
The same holds true for the John and Jane Does lingering in this case’s caption.
B. Title VII Hostile Work Environment
The first tort Sears-Barnett claims against SCHC is for a hostile work
environment in violation of Title VII. That claim calls plaintiff to prove that
her “workplace [was] permeated with discriminatory intimidation, ridicule,
and insult that is sufficiently severe or pervasive to alter the conditions of
[her] employment and create an abusive working environment.” Bentley v.
AutoZoners, LLC, 935 F.3d 76, 90 (2d Cir. 2019). Answering that question
has both an objective element and a subjective one. Id. Objectively, “the
conduct complained of must be severe or pervasive enough that a reasonable
person would find it hostile or abusive[.]” Id. Subjectively, “the
victim . . . must perceive the work environment to be abusive.” Id.
The objective prong considers 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.”
McGullam v. Cedar Graphics, Inc., 609 F.3d 70, 79 (2d Cir. 2010) (citing
Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). The circumstances
comprising that totality typically must be more than episodic. Agosto v. New
York City Dep’t of Educ., 982 F.3d 86, 102 (2d Cir. 2020). Instead, the
plaintiff must demonstrate continuous and concerted misconduct, or else
misconduct that is so extreme that it makes her work environment hostile
standing alone. Id. at 103.
However, equally relevant as what a plaintiff bringing a hostile work
environment claim must prove is how they must prove it. To that end, there
are two ways to hold an employer liable for a hostile work environment claim.
Bentley, 935 F.3d at 91. If an employee’s supervisor created the hostile work
environment, the employer is strictly vicariously liable for that supervisor’s
misconduct. Id. But if the environment was created by a coworker rather
than a supervisor, the plaintiff must prove that the employer was negligent
regarding the environment or else failed to remedy it once it was brought to
the employer’s attention. Id.
As might be expected, the parties do not agree as to whether Shannon
qualifies as an employer, and thus whether the relevant standard is strict
vicarious liability or negligence. In either case, Sears-Barnett has failed to
establish a hostile work environment as a matter of law.
Let us assume, as the Court must on summary judgment, that Shannon
engaged in a pattern of sexually harassing behavior beginning in the summer
of 2012 with unbuttoning her blouse in front of Sears-Barnett. Let us further
assume that Shannon’s harassment did not end until February 12, 2014 with
Shannon’s alleged comment of being unable to keep her hands off of plaintiff.
Pl. Aff. ¶ 8; Williams Aff. p. 40.
Holding those assumptions in mind, the next question is whether Shannon
was Sears-Barnett’s supervisor, and the extent to which SCHC can be
charged with Shannon’s conduct. Whether Shannon supervised plaintiff or
not, that question ultimately turns on the effectiveness of SCHC’s response to
After all, to the extent Shannon was Sears-Barnett’s coworker, an
employer is not negligent if it takes appropriate remedial action to address a
coworker’s (and not a supervisor’s) harassment of which the employer either
was aware or should have been aware. See Duch v. Jakubek,
588 F.3d 757, 763 (2d Cir. 2009).
“The appropriateness of an employee’s remedial action must be assessed
from the totality of the circumstances.” Turley v. ISG Lackawanna, Inc.,
774 F.3d 140, 153 (2d Cir. 2014). In the Second Circuit, that means courts
should gauge whether an employer acted “in good faith[ by] tak[ing ] those
measures which are both feasible and reasonable under the circumstances.”
Snell v. Suffolk Cty., 782 F.2d 1094, 1104 (2d Cir. 1986). Additionally
important to the inquiry is whether the employer’s action was effective and
prompt. Bader v. Special Metals Corp., 985 F. Supp. 2d 291, 329
If Shannon was merely Sears-Barnett’s coworker, SCHC has provided
ample evidence that it took appropriate remedial action to address the sexual
harassment plaintiff alleged.
As the record makes all too plain, SCHC took remedial action by
disciplining Shannon based on Sears-Barnett’s complaint. Williams Aff.
p. 46. That discipline was not an empty slap on the wrist, either. Id.
Instead, Shannon was issued a final warning that any other misconduct
would result in her immediate firing. Id. SCHC also replaced Shannon as
plaintiff’s supervisor at least in some respects. DSMF ¶ 23; but see Dkt. 61-1,
pp. 27-29 (Shannon retracting plaintiff’s leave well after being removed as
supervisor). The scope of SCHC’s remedial measures suggests good faith on
its part in addressing plaintiff’s concerns. Snell, 782 F.2d at 1104 (tasking
employers with acting in good faith to address employee’s claims of
As for the effectiveness of SCHC’s disciplinary measures, by all
appearances they worked. Sears-Barnett does not identify any further sexual
harassment after the final warning. See Pl. Dep. 75-76. Although she
complained of Shannon ignoring her after her complaint, that was if anything
part of SCHC’s suggestion that Shannon minimize any one-on-one contact
with plaintiff. Id.; Shannon Dep. pp. 23-24. There is no question that
SCHC’s remedial measures were effective, and given their effectiveness they
were implicitly reasonable. 8 See Snell, 782 F.2d at 1104 (requiring employers
to take reasonable remedial actions); Bader, 985 F. Supp. 2d at 329 (noting
that employers must take effective remedial action).
Now, Sears-Barnett may—and does—object that SCHC tarried too long in
bringing that result about, and that the remedial action was not prompt. But
no reasonable jury could conclude that the only possible outcome to plaintiff’s
sexual harassment complaint was Shannon’s immediate discipline without an
investigation. This is especially true because plaintiff’s complaint was the
first complaint of its type that any SCHC employee had ever lodged against
Shannon. Williams Dep. 51.
True, seven weeks is not an insubstantial period of time to conduct what
seems to be a straightforward investigation. Compare DSMF ¶ 12 (plaintiff
filed complaint on February 12, 2014), with Williams Aff. p. 46 (issuing final
warning on April 2, 2014). However, the law simply cannot require sending
SCHC to trial because they did not immediately discipline a supervisory
employee upon the first allegation of sexual harassment levied at her,
especially when plaintiff has provided no evidence of further harassment in
the intervening period between her complaint and Shannon’s receipt of the
To the extent that plaintiff argues Shannon should have been fired as a result of her complaint,
that argument does not raise a question of fact as to whether SCHC’s remedial action was
reasonable. As discussed below, SCHC could not have been required to fire Shannon in the first
instance of misconduct.
final warning. See Swenson v. Potter, 271 F.3d 1184, 1196-97 (9th Cir. 2001)
(“Title VII ‘in no way requires an employer to dispense with fair procedures
for those accused or to discharge every alleged harasser.’” (citing Harris
v. L & L Wings, Inc., 132 F.3d 978, 984 (4th Cir. 1997)).
Indeed, other courts to consider the issue have found that a remedial
action begins with the investigation, and thus the timeline to reach a
conclusion is not as determinative when the employer actively investigates
the claim. See, e.g., Allen v. Babcock & Wilcocx Tech. Servs. Pantex, LLC,
2013 WL 5570192, at *11 (N.D. Tex. Oct. 9, 2013) (noting that remedial
action was prompt because employer began investigation by convening
meeting to determine reasonable next steps).
Accordingly, that it took so long for SCHC to reach a final determination
on how to permanently address plaintiff’s complaint is not enough for a
reasonable factfinder to take issue with SCHC’s remedial action. See Allen,
2013 WL 5570192, at *11 (finding no question of fact as to effectiveness of
remedial action when period from plaintiff’s complaint to final adjudication of
complaint lasted only two months). As a result, Sears-Barnett has not raised
a question of fact as to the effectiveness of SCHC’s remedial action, and
Shannon’s alleged sexual harassment could not factor into her hostile work
environment claim if Shannon were only her coworker.
Alternatively, if the Court assumes that Shannon was Sears-Barnett’s
supervisor, 9 her hostile work environment claim still fails as a matter of law
because of SCHC’s antiharassment policies and its effective use of those
policies. Although the general rule for a harassing supervisor is that the
employer is strictly vicariously liable, an employer can defeat that liability
through the affirmative defense first handed down by the Supreme Court in
Faragher v. Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc.
v. Ellerth, 524 U.S. 742 (1998) (the “Faragher defense”).
The Faragher defense has two elements: (1) the employer exercised
reasonable care to prevent and correct any harassing behavior; and (2) the
plaintiff unreasonably failed to take advantage of the preventive or corrective
opportunities available to her. 10 Vance v. Ball State Univ., 570 U.S. 421, 424
The Court gives plaintiff a substantial benefit of the doubt in doing so. Even drawing all
reasonable inferences in her favor, the only evidence plaintiff has mustered as to Shannon’s ability to
alter the conditions of her employment is Shannon’s ability to grant and retract plaintiff’s leave
requests on two occasions. Williams Aff. p. 37; Dkt. 61-1, pp. 27-29. This threadbare showing is
likely insufficient to establish that Shannon supervised plaintiff. But, because for the reasons that
follow defendants are entitled to summary judgment against plaintiff’s claim in any case, the Court
need not reach so far as to hold that Shannon did not supervise plaintiff.
10 The Faragher defense for an employer’s strict liability for a supervisor’s misconduct is not
available if the supervisor’s harassment culminates in a tangible employment action against the
plaintiff. Vance, 570 U.S. at 424. That exception does not apply, because plaintiff has not pointed to
an adverse employment action that she can tie to Shannon in this case. See DSMF ¶ 44 (noting that
Shannon had no authority to hire or fire); Penn. State Police v. Suders, 542 U.S. 129, 134 (2004)
(noting that “humiliating demotion, extreme cut in pay, or transfer to a position in which she would
face unbearable working conditions” constitutes adverse employment action for purposes of Faragher
Applying the Faragher defense to these facts, the existence of an
anti-harassment policy and a complaint procedure—coupled with SCHC
actively using that procedure to rectify plaintiff’s complaint—soundly
establishes SCHC’s reasonable care in preventing and correcting harassing
behavior to satisfy the first prong of the Faragher defense. See, e.g., Petro v.
Outback Steakhouse, 2006 WL 273133, at *4 (N.D.N.Y. Jan. 31, 2006)
(finding first prong of affirmative defense against strict liability for
supervisor harassment met where defendant company had anti-harassment
policy and complaint procedure).
The record also leaves no doubt that Sears-Barnett was aware of that
policy and how it functioned. DSMF ¶ 7 (plaintiff admitting she received
copies of anti-harassment policies); cf. Williams Aff. pp. 25-36 (plaintiff
complaining to Williams about Shannon’s improperly retracting her leave).
In fact, plaintiff eventually used that policy to challenge the precise conduct
she complains of. DSMF ¶ 12.
That said, to a certain extent Sears-Barnett’s invocation of SCHC’s
anti-harassment policies precludes the application of the Faragher defense.
Remember, to prove the second prong of that defense SCHC must furnish
evidence that plaintiff unreasonably failed to avail herself of the employer’s
antiharassment policy. Vance, 570 U.S. at 424. As a consequence, to the
extent that plaintiff’s complaint amounts to a reasonable invocation of
SCHC’s policy, the Faragher defense is unavailable. Id. If the Court
assumes that plaintiff told Williams about Shannon touching her on
February 5, 11, and 12, that amounts to plaintiff’s reasonable use of that
policy for those claims of harassment. Pl. Aff. ¶ 11.
But Sears-Barnett alleges two years’ worth of sexual harassment. See
Pl. Aff. ¶ 8 (plaintiff complaining that Shannon unbuttoned her blouse in
front of her in 2012); Williams Aff. p. 40 (plaintiff complaining Shannon
touched her on February 12, 2014 and claimed she was having trouble
keeping her hands to herself).
That Sears-Barnett eventually complained of Shannon’s alleged sexual
harassment only underscores the two years of silence that preceded that
complaint. She knew the policy, claims that Shannon began harassing her in
2012, and still kept this alleged pattern of harassment to herself for almost
two years. In the absence of any specific events with so much as a general
timeframe attached to them between the summer of 2012 and February 5,
2014, the Court has no basis to consider the general pattern of misconduct
plaintiff alleges between those two points.
SCHC has therefore sufficiently established the Faragher defense as to
Sears-Barnett’s claims of sexual harassment predating February 5, 2014.
See, e.g., Finnerty v. William H. Sadlier, Inc., 176 F. App’x 158, 162-63
(2d Cir. 2006) (summary order) (affirming dismissal of hostile work
environment claim using affirmative defense to defeat vicarious liability
because plaintiff failed to complain about sexual harassment for three years).
Stripping away Sears-Barnett’s earlier allegations of a pattern of
harassment by Shannon, her hostile work environment claim fails as a
matter of law. 11 Under the most generous reading of the facts available to
sustain plaintiff’s hostile work environment claim, the sum total of incidents
plaintiff complains of amounts to: (1) three instances of sexual harassment
across one week; (2) Shannon’s treating her as if she were “invisible” after
receiving the final warning; (3) her unease at Shannon’s continued
employment at SCHC; (4) Shannon’s not helping her log into her computer on
August 18, 2014; (5) Shannon’s comment of “[o]h she’s here” on the same day;
(6) Shannon’s retracting her scheduled leave on August 20, 2014; and (7) her
termination. Pl. Dep. 75-76; Pl. Aff. ¶¶ 5, 19; Williams Aff. p. 52; Dkt. 61-1,
That showing cannot be enough. To begin, because of SCHC’s disciplinary
action toward Shannon, there is no evidence in the record of further sexual
harassment after February 12, 2014. That fact undermines Sears-Barnett’s
ability to prove a hostile work environment in two meaningful ways. First, it
presents a finite, isolated period of time in which plaintiff was subjected to an
Of course, if Shannon were only plaintiff’s coworker, plaintiff could not even rely on these
three incidents because for the reasons described above SCHC cured those instances of sexual
harassment with a reasonable remedial action.
objectionable workplace. Second, a reasonable employee would hardly be
able to find their workplace to be pervasively discriminatory if their employer
actively took successful steps to protect them from abuse. Bentley,
935 F.3d at 90 (noting that hostile work environment requires environment
sufficiently severe to be considered hostile by reasonable employee).
Accordingly, the three instances of sexual harassment potentially
attributable to SCHC do not provide good evidence that plaintiff’s work
environment rose to the level of hostility.
Next, Sears-Barnett’s complaints of Shannon’s chilly demeanor toward her
after receiving the final warning contribute nothing to proving a hostile work
environment. See, e.g., Corso v. N.Y. State Dep’t of
Corr. & Cmty. Supervision, 2019 WL 2869573, at *10 (N.D.N.Y. July 3, 2019)
(noting that being ignored and isolated by supervisors does not amount to
hostile work environment claim). This is especially true because it was at
least suggested to Shannon that she minimize contact with plaintiff after the
results of the investigation came to light. Shannon Dep. 23. No reasonable
employee would object to conduct calculated to protect her from sexual
harassment. Bentley, 935 F.3d at 90.
Sears-Barnett’s discomfort at Shannon remaining employed at SCHC is
also not enough to maintain her hostile work environment claim. It is true
that she has affirmed that she remained disquieted by Shannon’s presence.
Pl. Aff. ¶ 18. But for the reasons discussed above, SCHC was not obligated to
fire Shannon for her misconduct. Accordingly, though the Court understands
plaintiff’s discomfort, that is not enough to constitute a hostile work
environment, whether alone or in conjunction with plaintiff’s other evidence.
As for the remainder of Sears-Barnett’s complaints about her workplace,
she has provided no evidence tying any of these actions to her sex. After all,
Title VII is not a “general civility code for the American workplace.” Oncale
v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). Instead, that
statute is intended to combat discrimination at work. Oscar Mayer & Co. v.
Evans, 441 U.S. 750, 756 (1979) (noting that purpose of Title VII is to
eliminate discrimination in the workplace). Without a scintilla of evidence
from which a rational finder of fact could conclude that Shannon’s comments,
plaintiff’s retracted leave, or her firing were a result of her gender, plaintiff
cannot demonstrate that these remaining complaints created the requisite
discriminatory workplace to satisfy plaintiff’s hostile work environment
claim. Bentley, 935 F.3d at 90.
In other words, considering the totality of the circumstances
Sears-Barnett’s claims present, no reasonable employee could conclude that
plaintiff’s work environment was so pervasively infected with discrimination
that it was hostile. Bentley, 935 F.3d at 90. Plaintiff’s Count I hostile work
environment claim under Title VII must therefore be dismissed. See, e.g.,
Durant v. A.C.S. State & Loc. Sols. Inc., 460 F. Supp. 2d 492, 498 & n.3
(S.D.N.Y. 2006) (granting summary judgment against hostile work
environment claim because even if sexual harasser was employer for
purposes of imputing liability “[i]f there is a [sexual harassment] policy, and
if the policy is invoked . . . to redress the harassment . . . the employee has no
basis to complain.”).
C. ADA and Rehabilitation Act Discrimination
Sears-Barnett next argues that SCHC discriminated against her on the
basis of disability in violation of both the ADA and the Rehabilitation Act.
Those two statutory schemes serve slightly different purposes. The ADA
prohibits “discriminat[ion] against a qualified individual on the basis of
disability . . . .” 42 U.S.C. § 12112(a). By contrast, the Rehabilitation Act
aims to “empower individuals with disabilities to maximize employment,
economic self-sufficiency, independence, and inclusion and integration into
society[.]” 29 U.S.C. § 701(b)(1). Even so, discrimination claims under either
statute are analyzed under the same standard. Piligian v. Icahn Sch. of
Med., --- F. Supp. 3d ---, 2020 WL 5758752, at *4 (S.D.N.Y. Sept. 28, 2020).
As with most employment discrimination claims, summary judgment
motions for ADA and Rehabilitation Act claims are considered through the
burden-shifting framework the Supreme Court handed down in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Sista v. CDC
Ixis N. Am., Inc., 445 F.3d 161, 169 (2d Cir. 2006) (applying burden-shifting
framework to ADA discrimination claim); Reg’l Econ. Cmty. Action Program,
Inc. v. City of Middletown, 294 F.3d 35, 48-49 (2d Cir. 2002), superseded by
statute on other grounds (same for Rehabilitation Act claim).
That framework tasks courts with three stages of analysis. In the first,
the plaintiff must provide a showing to support her prima facie claim.
McDonnell Douglas, 411 U.S. at 802. If she meets that initial burden, the
defendant must counter her showing by demonstrating a legitimate,
nondiscriminatory reason for the adverse action the plaintiff complains of.
Id. Should the defendant also succeed in making that showing, the burden
shifts back to the plaintiff for a final time to provide evidence that the
employer’s legitimate reason was mere pretext. Id. at 804.
The elements of a prima facie disability discrimination claim under either
the ADA or the Rehabilitation Act are: (1) the employee is “a person with a
disability under the meaning of the statute in question”; (2) “an employer
covered by the statute had notice of [her] disability”; (3) “with reasonable
accommodation, [the] plaintiff could perform the essential functions of the job
at issue”; and (4) “the employer has refused to make such accommodations.”
Natofsky v. City of N.Y., 921 F.3d 337, 352 (2d Cir. 2019) (cleaned up). The
plaintiff must also show a causal connection between the employer’s failure to
accommodate, an eventual adverse employment action, and any subsequent
performance deficiencies on the plaintiff’s part used to explain that adverse
action. See Parker v. Sony Pictures Ent., Inc., 260 F.3d 100, 108
(2d Cir. 2001) (requiring causal connection between deficiencies, failure to
accommodate, and adverse action).
Sears-Barnett fails on her initial showing because she has provided no
evidence that SCHC has failed to accommodate her foot injury, and by
necessary extension that a failure to accommodate caused her adverse
employment action. Even considering all of the evidence in the light most
favorable to plaintiff, it is impossible to come away from the facts of this case
with any clear idea of what SCHC did in reference to her injury that plaintiff
Sears-Barnett does not dispute that, except for a few hours on August 18,
2014, she did not work between May 27th and December 1, 2014.
DSMF ¶¶ 27, 31-32, 36. She also does not dispute that she did not contact
SCHC at all concerning her availability to come back to work or any
accommodations that could help make her return possible between August
21, 2014, and her termination on December 1, 2014. Id. ¶¶ 36, 39; Williams
Aff. p. 52. Perhaps most importantly of all, plaintiff does not dispute that
SCHC made all necessary accommodations to allow her to return to work,
however briefly, on August 18, 2014. DSMF ¶¶ 31-32.
In light of these undisputed facts, it is difficult to see how Sears-Barnett
hopes to prove out her prima facie case. Her only arguments in support of
her disability discrimination claims are that the ADA provides a right to a
leave of absence, Graves v. Finch Pruyn & Co., 457 F.3d 181, 185 & n.5
(2d Cir. 2006), and that the employee need not affirmatively request
accommodations if the injury at issue is obvious, Brady v. Wal-Mart Stores
Inc., 531 F.3d 127, 135 (2d Cir. 2008).
Both of those arguments fail. As to the first, Sears-Barnett is correct that
in appropriate circumstances a leave of absence may be an accommodation
for a disability. See Graves, 457 F.3d at 185 (noting question of fact existed
as to whether plaintiff was entitled to leave of absence for “maybe a couple
weeks” to see foot specialist). But that right is not unlimited, and plaintiff
asks for far too much by suggesting that SCHC should have held her position
open for her without any indication of when or if she would be able to return.
Parker v. Sony Pictures Ent., Inc., 204 F.3d 326, 338 (2d Cir. 2000) (“The duty
to make reasonable accommodations does not, of course, require an employer
to hold an injured employee’s position open indefinitely while the employee
attempts to recover[.]”).
This is especially true when Sears-Barnett does not dispute that she did
not communicate with SCHC at all about her rehabilitation progress or a
potential timeline for her return to work. DSMF ¶ 39. As it turned out,
plaintiff was only cleared to return to work in December of 2015. Id. ¶ 41.
No reasonable juror could conclude that SCHC should have held plaintiff’s
position open for her from May 27, 2014, until December of 2015, especially
not without any meaningful effort by plaintiff to keep in touch as to her
progress. Plaintiff’s reliance on her right to a leave of absence does not
amount to a reasonable accommodation, and that argument must be rejected.
Sears-Barnett’s second argument that she had no need to apprise SCHC of
her need for accommodations because her injury was obvious fares no better.
Of course, plaintiff is correct that an employer has a duty to accommodate an
employee with an obvious disability. Brady, 531 F.3d at 135-36. However,
that duty is satisfied by engaging in an interactive process with the employee
to figure out a means to accommodate her. See id. (noting that employer
must engage in interactive process to determine ability for reasonable
accommodation if employer reasonably should have known employee was
Sears-Barnett does not genuinely dispute that SCHC engaged in this
process. Once again, she admits that SCHC accommodated her injury by
minimizing her time walking and standing. DSMF ¶ 31; Dkt. 52-3, p. 17. In
fact, when pressed at deposition for an example of what SCHC failed to do to
allow plaintiff to return to her job with reasonable accommodations, plaintiff
had no answer. Pl. Dep. 121. In other words, all available evidence
demonstrates that if anyone failed to participate in the interactive process of
coming up with a reasonable accommodation to allow plaintiff to return to
work, it was plaintiff herself. Brady, F.3d at 135-36; PSMF ¶ 39 (plaintiff
admitting she did not contact SCHC to advise concerning return to work or
additional requisite accommodations).
Sears-Barnett cannot blame SCHC for discriminating against her
disability by failing to accommodate her when she has not provided any
evidence at all that SCHC failed to work with her to provide a reasonable
accommodation that would allow her to keep her job. As a consequence,
plaintiff has failed to establish an essential element of her prima facie case of
disability discrimination, and thus her Count V discrimination claims under
the ADA and the Rehabilitation Act must be dismissed. See, e.g., Parker,
204 F.3d at 338 (noting that employer need not hold injured employee’s
position open indefinitely).
In addition to her claims of a hostile work environment under Title VII
and discrimination under the ADA and the Rehabilitation Act, Sears-Barnett
also brings a retaliation claim under all three statutes. At summary
judgment, those claims are all again construed under the McDonnell Douglas
burden-shifting scheme. Littlejohn v. City of New York, 795 F.3d 297, 315-16
(2d Cir. 2015).
To establish a prima facie case of retaliation under all of the three statutes
upon which Sears-Barnett relies, an employee must show that: (1) she was
“engaged in protected activity” under the law supporting her claim; (2) “the
employer was aware of that activity”; (3) the employee suffered a “materially
adverse action”; and (4) there was “a causal connection between the protected
activity and that adverse action.” Agosto, 982 F.3d at 104 (establishing
elements of Title VII retaliation); Piligian, 2020 WL 5758752, at *5-6
(providing same elements for retaliation under ADA and Rehabilitation Act).
An employer’s action is materially adverse if it “well might have dissuaded
a reasonable worker from making or supporting a charge of discrimination.”
Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 25
(2d Cir. 2014). The converse is also true: a trivial harm that would not
dissuade an employee from making a discrimination claim does not qualify as
a materially adverse action. Id. Where a potential adverse action falls on the
spectrum between those two points is an objective test, based on the reactions
of a reasonable employee in the plaintiff’s shoes. Id.
As for causation, a plaintiff can establish that element by establishing
that “the protected activity was closely followed in time by the adverse
employment action.” Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110
(2d Cir. 2010) (citation omitted). For Title VII claims, a plaintiff must
establish that her protected activity was the but-for cause of her adverse
employment action. Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 352
(2013). Although the law in this Circuit is unsettled as to the causation
standard imposed in ADA and Rehabilitation Act retaliation claims, most
courts have nevertheless imported the but-for causation standard to these
claims as well for the same reasons. See, e.g., Monsour v. N.Y. State Off. For
People with Developmental Disabilities, 2018 WL 3349233, at *11 n.17
(N.D.N.Y. July 9, 2018) (explaining reasons for imposing but-for causation
standard on Rehabilitation Act and ADA claims).
The only adverse action that Sears-Barnett identifies for any of her
retaliation claims is her being fired. Accordingly, the analysis for all three
claims is largely identical, with the one exception being that her protected
activity is different for her Title VII claim than it is for her ADA and
Rehabilitation Act claims.
For Sears-Barnett’s Title VII claim, she has identified a viable protected
activity through her complaint against Shannon. See Sharpe v. Utica
Mut. Ins. Co., 756 F. Supp. 2d 230, 235, 239 (N.D.N.Y. 2010) (noting that
sexual harassment complaint indisputably qualifies as protected activity
under Title VII). However, tying that protected activity to her eventual
termination proves to be too tall an order for plaintiff to fill.
Sears-Barnett filed her complaint against Shannon on February 12, 2014,
but was only terminated nearly ten months later, on November 27, 2014.
Williams Aff. p. 52; DSMF ¶ 12. That ten-month gap is far too long to
sustain an inference of causal connection on its own. See, e.g., Kellman v.
Metro. Transp. Auth., 8 F. Supp. 3d 351, 387-88 (S.D.N.Y. 2014) (noting that
“temporal gap of more than six months . . . is unable to support an inference
of causation that could defeat summary judgment”).
Nevertheless, Sears-Barnett argues that she has direct evidence of
animus, and by extension the lengthy gap between protected activity and
adverse action is of no consequence. The Court has scoured the record and
found no evidence of a direct retaliatory animus by SCHC motivating
plaintiff’s firing. Nor do plaintiff’s papers elaborate on what that evidence
might be. As a consequence, plaintiff has failed to establish a prima facie
case of retaliation under Title VII, and her Title VII retaliation claim under
Count III must be dismissed.
The analysis for Sears-Barnett’s ADA and Rehabilitation Act retaliation
claims looks different, but reaches the same result. Plaintiff’s activities
protected by those statutes were her requests for accommodations. Lawton v.
Success Acad. Charter Schs., Inc., 323 F. Supp. 3d 353, 366 (E.D.N.Y. 2018)
(noting that requesting accommodations is protected activity under
Rehabilitation Act); Conley v. United Parcel Serv., 88 F. Supp. 2d 16, 20
(E.D.N.Y. 2000) (same for ADA). Plaintiff made three requests for
accommodations: her request to limit the need for her to stand and walk at
work in advance of her return to work in August of 2014 and her two requests
for leaves of absences on May 27, 2014 and August 21, 2014. See Graves,
457 F.3d at 185 (noting that request for finite leave of absence can constitute
request for reasonable accommodations).
Unlike the sizeable ten-month gap that tripped up plaintiff’s Title VII
retaliation claims, a three-month span between late August and the end of
November is not quite so apparently insufficient. Even so, many courts have
held that a two-to-three-month temporal distance between protected activity
and allegedly retaliatory act is still not enough to establish causation without
additional evidence of retaliatory animus. See Housel v. Rochester Inst. of
Tech., 6 F. Supp. 3d 294, 308 (W.D.N.Y. 2014) (collecting cases for proposition
that two to three months between request for accommodations and allegedly
retaliatory act was insufficient without other evidence of causation).
Once again, Sears-Barnett has failed to come forward with any additional
evidence of retaliatory animus for SCHC’s decision to fire her. Thus, the
three-month gap between her most recent request for accommodations and
her firing is insufficient to establish causation. See Housel,
6 F. Supp. 3d at 308.
But even assuming that the three-month gap was enough to support
causation, and indeed assuming that Sears-Barnett has managed to establish
a prima facie case that her firing was retaliatory, her claim would still fail.
Plaintiff has provided no evidence that SCHC’s professed non-discriminatory
reason for firing her—namely plaintiff’s six-month absence from work with
no end in sight—was pretextual.
No reasonable factfinder could conclude that Sears-Barnett was fired
because of her requests for accommodations, or even for her requests for
leaves of absences. Instead, the record unequivocally demonstrates that
plaintiff was fired because after six months of being out of work—less a few
hours on August 18, 2014—SCHC had no idea if or when plaintiff would
Sears-Barnett makes only three meaningful attempts to argue otherwise.
First, she repeats her conclusory claims that she has furnished evidence of
retaliatory animus. Again, if that evidence exists, the Court cannot find it
and she has provided no specifics to so much as steer the Court in its
direction. That argument must be rejected.
Second, to Sears-Barnett’s mind the fact that SCHC used May 27, 2014,
the date of her disability, instead of August 21, 2014, the date she went on
inactive status, to calculate the six-month period that triggered her firing
speaks to pretext. This argument must be rejected as well. Although
plaintiff did return to work in August of 2014, she stayed for only a few hours
before once again taking her leave. DSMF ¶ 33. The cause of her leave
remained the same: her broken foot. Id. ¶ 37. Effectively, then, plaintiff was
continuously out of work due to her foot injury beginning in May, and SCHC’s
use of this date to start the clock running on her inactivity does not provide
evidence of pretext sufficient to persuade a reasonable factfinder.
Third, Sears-Barnett argues that SCHC has failed to point to any written
policy requiring the termination of an inactive employee after six months. As
she would have it, if such a policy existed it would be written down, and if it
were written down, it would have turned up in discovery. Yet even assuming
that plaintiff is correct and SCHC has no formal policy of automatically
terminating employees after six months of inactive status, she would still
need to prove that retaliation for her protected activities was the true motive
for her firing. See Hexemer v. Gen. Elec. Co., 2015 WL 3948418, at *9
(N.D.N.Y. June 29, 2015) (citing Quarantino v. Tiffany & Co., 71 F.3d 58, 64
(2d Cir. 1995)).
She cannot. Of course, a false explanation for an adverse action allows for
an inference of discrimination in the appropriate circumstances. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000). But
Sears-Barnett has failed to provide evidence that her claims can sustain that
inference. In every paper referring to plaintiff’s termination, SCHC cited her
six-month absence from work as its reason for firing her, providing
consistency to SCHC’s narrative. Williams Aff. pp. 52-53. In addition,
SCHC’s track record of accommodating plaintiff whenever she requested it
makes the likelihood of her being fired for those requests dubious, to say the
least. DSMF ¶ 31.
In short, whether SCHC had a formal policy of terminating inactive
employees after six months or not, no reasonable juror could conclude that
retaliating against her was the true motive for firing her. SCHC’s repeated
accommodations of her injury, her six-month absence from work, and her
absolute silence about her intentions to return to work speak far too loudly
for plaintiff’s meager showing of a lack of a written policy to sustain her
claim. And of course, if no reasonable factfinder could conclude that
retaliation was SCHC’s true motive for firing her, plaintiff cannot prove its
stated reasons were pretextual. Accordingly, Sears-Barnett’s ADA and
Rehabilitation Act retaliation claims under Count VII must be dismissed. 12
Cf. Parker, 204 F.3d at 338 (noting that employer could not be required to
hold position open indefinitely for injured employee).
The Court notes, however, that Shannon’s retraction of plaintiff’s time off could potentially
also qualify as an adverse action as that term is defined for retaliation claims. See Wharton v. Cty. of
Nassau, 2013 WL 4851713, at *12 (E.D.N.Y. Sept. 10, 2013) (noting that denying time off requests
constitute adverse actions for purposes of retaliation claims); Dkt. 61-1, pp. 27-29 (Shannon
discussing having retracted plaintiff’s leave in August 2014). But at no point, whether in the
pleadings or in response to defendants’ motion for summary judgment, has plaintiff argued that
Shannon’s retraction of leave constituted retaliation. In fact, the issue is apparently of such little
importance to both parties that as things stand now it is entirely nebulous as to whether plaintiff
was ultimately docked that time off or if Shannon did as human resources suggested and restored
the leave request. In the absence of any effort by plaintiff—a counseled litigant—to ever argue that
she has a viable retaliation claim based on Shannon’s retracting her leave, the Court deems that
potential claim to be abandoned. See Jackson v. Fed. Express, 766 F.3d 189, 196 (2d Cir. 2014)
(noting that district courts have discretion to deem claims abandoned where counseled plaintiff does
not defend claim on summary judgment).
E. Plaintiff’s State Law Claims
Sears-Barnett’s complaint now stands without a single federal claim to
support jurisdiction in this Court. Defendants relied on federal question
jurisdiction under 28 U.S.C. § 1331 to remove this case to this Court, and
trusted the supplemental jurisdictional provisions of 28 U.S.C. § 1367 to
bring plaintiff’s state law claims along. Dkt. 1, ¶ 3.
A district court that has dismissed all federal claims in a case relying on
federal question jurisdiction may decline to exercise supplemental
jurisdiction over any lingering state law claims. 28 U.S.C. § 1367(c)(3). But
first, that court must consider “the values of judicial economy, convenience,
fairness, and comity” before making the choice to keep or dispose of the case.
Kroshnyi v. U.S. Pack Courier Servs., 771 F.3d 93, 102 (2d Cir. 2014)
(internal citations and quotation marks omitted). Those considerations point
toward disclaiming jurisdiction in a healthy majority of cases. See Brzak v.
United Nations, 597 F.3d 107, 113-14 (2d Cir. 2010) (“[I]f a plaintiff’s federal
claims are dismissed before trial, the state claims should be dismissed as
well.” (internal citations and quotation marks omitted)).
The Court sees no cause to depart from the standard rule. Although this
case has proceeded far in the federal system, the fact remains that state
courts are better equipped to deal with state law claims than are federal
ones. In addition, Sears-Barnett initially filed her complaint in state court,
and in the absence of a federal claim affording jurisdiction, her preference
further supports seeing this case resolved in state court. Accordingly, the
remainder of the complaint must be remanded to New York State Supreme
Court, Onondaga County. 13
After reviewing Sears-Barnett’s federal claims, the Court is unsure what
more she wanted from SCHC. Plaintiff complained of sexual harassment,
and her harasser was disciplined. Perhaps that discipline was not as swift or
as absolute as plaintiff would have liked, but federal law cannot require an
employer to follow a complaining employee’s every wish in the handling of
her complaint. Nor can the law require that every complaint result in
immediate termination of its addressee.
Similarly, when Sears-Barnett was injured in the office, SCHC permitted
her a six-month absence before terminating her. Federal law also cannot
charge SCHC to keep plaintiff’s job open forever, despite her refusal to
communicate with it as to her intentions to return. It may be that plaintiff
can attain a different result in state court, but plaintiff’s federal claims must
Therefore, it is
A district court that declines to exercise supplemental jurisdiction in a removed case has
discretion to remand the claims or to dismiss them without prejudice. See Carnegie-Mellon
Univ. v. Cohill, 484 U.S. 343, 357 (1988) (holding that district courts have discretion to remand
removed cases and need not always dismiss them).
1. Plaintiff Tisha Sears-Barnett’s Claims under Counts: (I) hostile work
environment in violation of Title VII; (III) retaliation in violation of
Title VII; (V) discrimination in violation of the ADA and the
Rehabilitation Act; and (VII) retaliation in violation of the ADA and the
Rehabilitation Act are DISMISSED WITH PREJUDICE; and
2. Counts (II) sex discrimination under the NYSHRL; (IV) retaliation for a
sexual harassment complaint under the NYSHRL; (VI) disability
discrimination under the NYSHRL; (VIII) disability retaliation under
the NYSHRL; (IX) intentional infliction of emotional distress; and
(X) negligence and gross negligence are REMANDED to New York
State Supreme Court, Onondaga County.
3. The Clerk of Court is directed to enter judgment accordingly, forward
this decision and the case file to the New York State Supreme Court,
Onondaga County, and close the case file.
IT IS SO ORDERED.
Dated: March 31, 2021
Utica, New York.
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