DiFillippo v. Special Metals Corporation et al

Filing 83

MEMORANDUM-DECISION AND ORDER granting 62 Motion for Summary Judgment: The Court hereby ORDERS that Defendants' motion for summary judgment (Dkt. No. 62) is GRANTED in its entirety; and the Court further ORDERS that Plaintiff's claims ar e DISMISSED with prejudice; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision and Order on all parties in accordance with the Local Rules; and the Court further ORDERS that the Clerk of the Court shall enter judgment in Defendants' favor and closethis case. Signed by U.S. District Judge Mae A. D'Agostino on 9/6/2016. (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
LINDA DiFILLIPPO,
Plaintiff,
vs.

6:13-cv-00215
(MAD/ATB)

SPECIAL METALS CORPORATION, WILLIAM
FARLEY, DONALD BIERSTINE, RONALD
THOMPSON, NICHOLAS MASCHINO, KEITH
DABBS, and TERRY WHITE,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

BOSMAN LAW FIRM, L.L.C.
6599 Martin Street
Rome, New York 13440
Attorneys for Plaintiff

A.J. BOSMAN, ESQ.
DANIEL W. FLYNN, ESQ.

BOND, SCHOENECK & KING, PLLC
One Lincoln Center
Syracuse, New York 13202-1355
Attorneys for Defendants

BRIAN J. BUTLER, ESQ.
COLIN M. LEONARD, ESQ.
SUZANNE M. MESSER, ESQ.

Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
On October 12, 2012, Plaintiff, Linda DiFillippo, commenced this action against
Defendants Special Metals Corporation ("Special Metals"), William Farley, Donald Bierstine,
Ronald Thompson, Nicholas Maschino, Keith Dabbs, and Terry White. Dkt. No. 5 at 11.
Plaintiff's amended complaint alleges (1) gender discrimination in violation of Title VII of the
Civil Rights Act of 1964 ("Title VII"), the New York State Human Rights Law ("NYSHRL"), and
Article I, Section 11 of the New York State Constitution; (2) retaliation in violation of Title VII,

the NYSHRL, Title V of the Americans with Disabilities Act ("ADA"), and the Rehabilitation
Act ("RA"); and (3) disability discrimination in violation of Title I of the ADA, the RA, the
NYSHRL, and the Article I, Section 11 of the New York State Constitution. Dkt. No. 27 at 9-12.
Plaintiff seeks $1,000,000 in compensatory and punitive damages for the injury and harm caused
by Defendants, as well as costs, injunctive and declaratory relief. See id. at 1, 14.
Currently pending before the Court is Defendants' motion for summary judgment. See
Dkt. No. 62-7 at 1. Plaintiff opposes Defendants' motion. Dkt. No. 77. For the following
reasons, Defendants' motion is granted.
II. BACKGROUND
On August 8, 2005, Plaintiff began her employment with Defendant Special Metals in the
Plant Utility Department. Dkt. No. 76 at ¶¶ 3, 5. Plaintiff has Chronic Obstructive Pulmonary
Disease ("COPD"), asthma, emphysema, and chronic bronchitis, which led to her being placed on
a permanent medical restriction at the beginning of her employment with Special Metals. Dkt.
No. 77 at 12. On or about February 28, 2006, Plaintiff suffered a hand injury which led to
another medical restriction beginning in May 2006. Id.
Plaintiff bid for a position in the Inspection Department multiple times between 2005 and
2010, but she was never selected for the position. Dkt. No. 76 at ¶ 6. Plaintiff alleges that after
her bid was denied in February 2010, the company's Safety Director, Joe Mack, told her that she
was ineligible for the position because she had a permanent medical restriction. Id. The
collective bargaining agreement ("CBA") in place in February of 2010 stated that employees with
medical restrictions were not eligible for a bid. Id. at ¶ 7.
Plaintiff filed a charge with the EEOC after she was denied a bid in the Inspection
Department in April 2010. Dkt. No. 77 at 13. On June 3, 2010, Special Metals offered Plaintiff
2

the position in the Inspection Department and she began her training on June 14, 2010. Dkt. No.
76 at ¶ 10.
Inspectors at Special Metals inspect raw material, in-process material, and finished
products to ensure that the materials meet the customer's specifications. Id. at ¶ 13. The position
requires great attention to detail because errors that are not identified by Inspectors can lead to
serious injury or death. Id. In order to be an Inspector at Special Metals, a person must complete
forty hours of classroom work in addition to on-the-job training. Id. at ¶¶ 24, 26. Plaintiff asserts
that all four of the male trainees were allowed to simultaneously undergo classroom training as
well as hands-on training within the first two weeks, but that she was left in the classroom for
eight hours and did not begin hands-on training until the last week and a half of her training. Id.
at ¶¶ 19, 26. While all Inspection trainees were moved to different areas of inspection on a
regular basis, Plaintiff was assigned to fifteen different areas within the department, more areas
than any other trainee in 2010. Id. at ¶ 29. Plaintiff asserts that she was never given enough
training or time to learn any given task. Id. at ¶ 39.
Plaintiff alleges that Joseph Sefcheck, the Inspector that she shadowed, had a gender bias.
Id. at ¶¶ 37, 39. According to Plaintiff, Mr. Sefcheck participated in conversations tinged with
sexual innuendo about her and he criticized her perfume, make-up, and clothes on a daily basis.
Id. Plaintiff also alleges that Mr. Sefcheck engaged in crude comments about another female
employee after he caused disciplinary action to be issued against her. Id. Plaintiff claims that
Mr. Sefcheck refused to assist Plaintiff and that he mocked her efforts to acquire the information
needed to complete tasks. Id. at ¶ 40.
Defendants claim that Plaintiff made at least thirty-three mistakes while in the Inspection
Department. Dkt. No. 62-6 at ¶ 44. Plaintiff asserts that four of her purported errors occurred on
3

days when she was not working. Dkt. No. 76 at ¶ 44. Additionally, four of the purported errors
occurred on February 1, 2011 when she was only clocked in for twenty minutes. Id. On or about
February 24, 2011, the Company informed Plaintiff that she would be demoted from the
Inspection Department and returned to her previous position in the Plant Utility Department. Id.
at ¶ 46. Plaintiff alleges that while she was in the Inspection Department, Adam Smith had a
higher number of recorded errors than her, but he was not demoted. Id. at ¶ 47. Plaintiff also
alleges that Joe Lebert had a higher error percentage than her, but he was not demoted. Id.
The Union filed a grievance regarding Plaintiff's demotion. Id. The Company met with
Plaintiff regarding the grievance on May 17, 2011. Id. at ¶ 52. Defendants assert that during this
meeting, Plaintiff revealed that she had a number of Company records at home in violation of
Plant Rule #19. Id. at ¶¶ 52-53. Plaintiff claims that the only company documents that she had at
home were her notes and other materials that Defendant White gave her permission to take home.
Id. Defendants allege that Plaintiff acknowledged that she had received and reviewed the Plant
Rules at the time that she commenced her employment, but Plaintiff asserts that she "does not
know whether she kept a copy of the Plant Rules book after she signed it" and that Defendant
Farley denied her request for a copy of the Plant Rules book to review. Id. at ¶ 56. The Plant
Rules indicate that employees who fail to adhere to the Company's standards of conduct or violate
any of the Plant Rules may be subjected to appropriate disciplinary action, which could include
discharge. Id. at ¶ 55. Defendants assert that the Company terminated Plaintiff after they
determined that she violated Plant Rule #19. Dkt. No. 62-6 at ¶ 65. Plaintiff claims that she was
terminated on the basis of her gender, disability, and in retaliation for a protected activity and that
Defendants are using Plant Rule #19 as pretext. Dkt. No. 76 at ¶ 65.
The Union filed a grievance regarding Plaintiff's termination and informed Special Metals
4

of its intention to take the grievance to arbitration. Dkt. No. 62-6 at ¶¶ 67-68. On or around
September 16, 2011, Special Metals offered Plaintiff a Last Chance Agreement, which would
have reinstated Plaintiff's employment if she agreed to adhere to the Plant Rules and serve a
probationary period during which she could be terminated without recourse through a grievance
procedure if she was found to violate Company rules. Id. at ¶ 69. Plaintiff did not sign the Last
Chance Agreement. Id. at ¶ 70. Plaintiff alleges that she was only offered a Last Chance
Agreement after she requested one. Dkt. No. 76 at ¶ 69. Plaintiff also asserts that the Last
Chance Agreement contained language where she had to admit to violating Plant Rule #19. Id.
She asked that this language be removed, but Special Metals refused. Id.
In March of 2012, the Company participated in a three-day arbitration session during
which Plaintiff and seven other Special Metals employees testified under oath regarding the
events leading up to the Company's decision to demote Plaintiff from the Inspection Department
to the Plant Utility Department, and also the Company's decision to terminate Plaintiff's
employment at Special Metals. Id. at ¶ 71. The arbitration was binding pursuant to section 8.10
of the CBA. Dkt. No. 62-1 at 29. On the issue of demotion, the Union's position was that
Plaintiff did not receive appropriate training or warnings of poor performance. Id. at 173.
Additionally, the Union asserted that neither the number nor the percentage of errors made by
Plaintiff were greater than those made by other inspectors. Id. at 174. The arbitrator ultimately
found that the issue of Plaintiff's demotion was not arbitrable, but if it were arbitrable, he would
uphold the demotion. Dkt. No. 76 at ¶ 77. In his opinion, the arbitrator stated that, "[g]iven the
number of errors and the importance of accuracy to the survival of the Company, it cannot
reasonably be argued that the Grievant was improperly demoted." Id.
On the issue of termination, the Union's position was that Plaintiff was not adequately
5

warned of the consequences of bringing documents home and that the penalty of termination was
not reasonably related to the seriousness of the alleged offense and Plaintiff's past work record.
See Dkt. No. 62-1 at 177. The arbitrator held that Special Metals had just cause for terminating
Plaintiff. Dkt. No. 76 at ¶ 78. The arbitrator evaluated Plaintiff's knowledge of the rule and the
circumstances under which the rule was violated. Dkt. No. 62-1 at 178. Specifically, the
arbitrator noted that, in its investigation of the incident, Plaintiff admitted to the Company that,
"'[i]f she knew she was violating a plant rule for taking records off site, she would have never
admitted to taking them.'" Id. at 176. During the investigation and before the arbitrator, Plaintiff
maintained that she had permission to remove the documents. See id. The arbitrator noted that
Plaintiff's belief that she had permission to take documents home with her may have been
believable at one point. See id. at 179. In May of 2011, however, which was after Plaintiff's
demotion, she asked another employee to bring the documents to her home. See id. As such, the
arbitrator found that the evidence demonstrated that Plaintiff knew that it was improper to take
such documents home with her and continued to do so after she no longer had any legitimate use
for the documents. See id.
On October 12, 2012, Plaintiff commenced this action in Oneida County Supreme Court.
See Dkt. No. 1. On February 26, 2013, Defendants removed the case to this Court. See id.
Currently before the Court is Defendants' motion for summary judgment. See Dkt. No. 62.
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 facts as to which there is no such issue
warrant judgment for the movant as a matter of law. See Chambers v. TRM Copy Ctrs. Corp., 43
6

F.3d 29, 36 (2d Cir. 1994) (citations omitted). When analyzing a summary judgment motion, the
court "'cannot try issues of fact; it can only determine whether there are issues to be tried.'" Id. at
36-37 (quotation and other citation omitted). Moreover, it is well-settled that a party opposing a
motion for summary judgment may not simply rely on the assertions in its pleading. See Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting Fed. R. Civ. P. 56(c), (e)).
In assessing the record to determine whether any such issues of material fact exist, the
court is required to resolve all ambiguities and draw all reasonable inferences in favor of the
nonmoving party. See Chambers, 43 F.3d at 36 (citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255, 106 S. Ct. 2505, 2513-14, 91 L. Ed. 2d 202 (1986)) (other citations omitted). Where
the non-movant either does not respond to the motion or fails to dispute the movant's statement of
material facts, the court may not rely solely on the moving party's Rule 56.1 statement; rather, the
court must be satisfied that the citations to evidence in the record support the movant's assertions.
See Giannullo v. City of N.Y., 322 F.3d 139, 143 n.5 (2d Cir. 2003) (holding that not verifying in
the record the assertions in the motion for summary judgment "would derogate the truth-finding
functions of the judicial process by substituting convenience for facts").
B.

Federal and State Gender Discrimination
Defendants argue that Plaintiff was terminated for a legitimate, non-discriminatory reason

— her violation of Plant Rule #19 — and that Plaintiff cannot establish a prima facie case of
discrimination nor demonstrate that the reasons stated for termination are a pretext for
discrimination. Dkt. No. 62-7 at 13-14. In response, Plaintiff asserts that her disparate treatment
as compared to the other four male trainees constitutes evidence of discriminatory intent that
could lead a reasonable jury to conclude that she was terminated for discriminatory reasons. Dkt.
No. 77 at 8.
7

"To establish a prima facie case of gender discrimination under Title VII and the
NYSHRL, a plaintiff must demonstrate: (1) membership in a protected class; (2) satisfactory job
performance; (3) an adverse employment action; and (4) circumstances surrounding the
employment action that give rise to an inference of discrimination." Fahrenkrug v. Verizon Servs.
Corp., ___ Fed. Appx. ___, 2016 WL 3448300, *2 (2d Cir. 2016) (citing Montana v. First Fed.
Sav. & Loan Ass'n of Rochester, 869 F.2d 100, 106-07 (2d Cir. 1989)); see also McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973); Forrest v. Jewish Guild for the Blind, 3
N.Y.3d 295, 316 (2004) (holding that the McDonnell Douglas framework applies to
discriminatory discharge claims brought pursuant to the NYSHRL) (citations omitted).
Discrimination claims are evaluated pursuant to the burden-shifting analysis articulated in
McDonnell Douglas, 411 U.S. at 802-03.
Under McDonnell Douglas, the plaintiff bears the initial burden of
establishing a prima facie case of discrimination. 411 U.S. at 802,
93 S. Ct. 1817. If the plaintiff does so, the burden shifts to the
defendant to articulate "some legitimate, nondiscriminatory reason"
for its action. Id. Once such a reason is provided, the plaintiff can
no longer rely on the prima facie case, but may still prevail if she
can show that the employer's determination was in fact the result of
discrimination.
Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 106 (2d Cir. 2010) (citing Holcomb v. Iona
Coll., 521 F.3d 130, 138 (2d Cir. 2008)). To rebut the articulated justification for the adverse
action, "the plaintiff must show both that the reason was false, and that discrimination was the
real reason." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 n.4 (1993) (internal quotations
omitted). However, conclusory allegations of discrimination are insufficient to defeat a motion
for summary judgment. See Diggs v. Niagara Mohawk Power Corp., No. 1:14-cv-244
(GLS/CFH), 2016 U.S. Dist. LEXIS 50035, *9 (N.D.N.Y. Apr. 14, 2016) (citing Holcomb, 521
8

F.3d at 137); see also Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997).
With respect to Plaintiff's prima facie case, it is undisputed that, as a woman, Plaintiff is a
member of a protected class under Title VII. See 42 U.S.C. § 2000e-2(a). It is also undisputed
that because Plaintiff was demoted and terminated, she was subjected to an adverse employment
action. See Fahrenkrug, 2016 WL 3448300, at *4. Therefore, in order to establish a prima facie
case of gender discrimination, Plaintiff must show that she was qualified for the position that she
held and that the circumstances surrounding her termination give rise to an inference of
discrimination. A plaintiff may create an inference of discrimination by showing disparate
treatment, i.e., by showing that his employer "treated him less favorably than a similarly situated
employee outside his protected group." Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir.
2000). To create an inference of discrimination by showing disparate treatment, plaintiff must
show that he was "'similarly situated in all material respects'" to the individuals with whom he
seeks to compare himself. Id. (quoting Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 64 (2d
Cir. 1997)).
In Plaintiff's memorandum of law in opposition to Defendants' motion for summary
judgment, she asserts that the record establishes disparate treatment because she could not share
in overtime as soon as other trainees, she was shuffled around to different training areas from day
to day unlike other trainees, she was not allowed to be removed from Mr. Sefcheck's supervision
in mark-to-cut when other trainees were, and she was not allowed to ask Mr. Sefcheck questions.
Dkt. No. 77 at 8. Despite this evidence, Defendants argue that Plaintiff cannot establish a prima
facie case of discrimination because she has not shown that the arbitrator's decision regarding her
termination was wrong as a matter of fact, or that the impartiality of the arbitration proceeding
was somehow compromised. Dkt. No. 62-7 at 20. Defendants rely on the Second Circuit
9

decision Collins v. N.Y. City Transit Auth. to make this argument. Collins v. N.Y. City Transit
Auth., 305 F.3d 113, 119 (2d Cir. 2002).
In Collins, the appellant, an African-American male, was terminated from his
employment, and he filed a grievance against his employer claiming he was discriminatorily
discharged. Collins, 305 F.3d at 117. Following the filing of the grievance, the appellant was
represented by his union at an arbitration hearing. Id. The arbitrator upheld the termination after
a finding of just cause. Id. In April 1993, the appellant commenced an action against the Transit
Authority for discriminatory and retaliatory employment termination in violation of Title VII as
well as other claims. Id. at 118. On October 30, 2000, the district court granted summary
judgment in favor of the employer dismissing the remaining claims and the appellant appealed.
Id. The Second Circuit affirmed the district court's decision to grant the employer's motion for
summary judgment and stated that while the appellant proffered enough evidence to create an
issue of fact of whether his termination resulted from discriminatory or retaliatory purposes, "that
proffer was not sufficient to overcome the additional probative weight of the arbitration award
allowing his termination." Id. at 119.1 The court concluded that a negative arbitration decision
does not preclude a Title VII action by a discharged employee. Id. (other citations omitted).
However, if an independent arbitrator's decision "follows an evidentiary hearing and is based on
substantial evidence," a Title VII plaintiff "must present strong evidence that the decision was

The Second Circuit recognized that the "Collins defense" may be viewed as either "an
attack on a [plaintiff's] showing of an inference of discrimination or retaliation in the prima facie
case or as an attack on plaintiff's satisfaction of the subsequent requirement that a proffered
legitimate reason for an employment action be shown to be pretextual." Collins, 305 F.3d at 118
n.1. The Court chose to treat the defense as an attack on the prima facie case, but noted that
"[b]ecause issues of this nature tend to collapse as a practical matter" under the McDonnell
Douglas burden shifting framework, it did not intend to preclude the use of the defense as an
attack on a claim of pretext. Id.
1

10

wrong as a matter of fact" or that the "impartiality of the proceeding was somehow compromised"
in order to survive a motion for summary judgment. See Collins, 305 F.3d at 119; see also Attard
v. City of N.Y., 451 Fed. Appx. 21, 24 (2d Cir. 2011).
Collins has consistently been followed and applied by the district courts in the Second
Circuit. In Diggs, the plaintiff was an African-American male employed by Niagara Mohawk
who was discharged after he used company tools at his home for personal gain in violation of the
company's standards of conduct. See Diggs, 2016 U.S. Dist. LEXIS 50035, at *1-*5. The
plaintiff challenged the termination through an arbitration hearing. Id. The arbitrator upheld the
termination after finding there was just cause for termination because the plaintiff violated
company policy. Id. at *6. The plaintiff challenged the arbitrator's decision in the Northern
District of New York alleging racial discrimination on the grounds that three white employees
were given far less discipline for similar conduct. Id. at *7. The defendant moved for summary
judgment relying on Collins. Id. at *11. The court applied the standard set forth in Collins and
granted the defendant's motion for summary judgment because the plaintiff did not show that the
arbitrator's decision was wrong as a matter of fact, or that the impartiality of the arbitration
proceeding was somehow compromised. Id. at *12.
In her memorandum of law, Plaintiff correctly argues that a negative arbitration decision
does not preclude a subsequent Title VII action. See Dkt. No. 77 at 4-6. Plaintiff's argument,
however, is misplaced. Defendants have not argued that the arbitrator's decision bars Plaintiff
from commencing this lawsuit or that they should be granted summary judgment on res judicata
or collateral estoppel grounds. The cases upon which Plaintiff has relied are inapposite. See, e.g.,
Morel v. American Building Maintenance Co., 124 Fed. Appx. 671 (2d Cir. 2005) (reversing the
trial court's grant of summary judgment on the grounds of res judicata and collateral estoppel
11

where the plaintiff's wrongful termination claim had been rejected by an arbitrator). Rather, as
Defendants correctly argue, the arbitrator's decision is simply strong evidence in support of their
position. See Collins, 305 F.3d at 115-19.
Moreover, the law is well settled that Plaintiff's failure to raise a discrimination claim
before an arbitrator is "immaterial" to whether the arbitral decision should be given substantial
weight. See Spell v. United Parcel Service, No. 09 Civ. 4375, 2012 WL 4447385, *2 (E.D.N.Y.
Sept. 25, 2012) (citing cases). "As long as the arbitrator has properly evaluated the factual,
nondiscriminatory reasons for the termination, 'the fact that the arbitration did not adjudicate
[plaintiff's] discrimination claim is irrelevant. . . .'" Id. (quoting Weeks v. N.Y.S. Div. of Parole, 78
Fed. Appx. 764, 766 (2d Cir. 2003)) (other citation omitted). As discussed, the arbitrator
considered substantial evidence in support of Defendants' decision to demote and terminate
Plaintiff and Plaintiff has failed to present any evidence or arguments suggesting that the
arbitrator was biased.2
Although Plaintiff's discrimination and retaliation claims are not precluded by the
arbitrator's decision, Defendants are nevertheless entitled to summary judgment. Plaintiff has

In her memorandum of law, Plaintiff asserts that the arbitrator's decision to uphold the
termination for just cause cannot preclude her from receiving relief because the motivation for her
termination was unlawful. See Dkt. No. 77 at 3. This argument fails because "courts in this
Circuit have held that whether discrimination claims were made before the arbitrator is irrelevant,
because '[t]here is no suggestion in Collins that the plaintiff had presented his evidence of
discriminatory . . . intent to the arbitrator.'" Diggs, 2016 U.S. Dist. LEXIS 50035, at *13 (quoting
Brenner v. City of N.Y. Dep't of Educ., No. 14 Civ. 3559, 2015 U.S. Dist. LEXIS 124509, 2015
WL 5475628, *6 (E.D.N.Y. Sept. 17, 2015)) (other quotation and citation omitted); see also
Gallimore-Wright v. Long Island R. Co., 354 F. Supp. 2d 478, 491-92 (S.D.N.Y. 2005); Simpson
v. N.Y. State Dep't of Civ. Serv., No. 02-CV-1216 (NPM/DRH), 2005 U.S. Dist. LEXIS 3399, *16
(N.D.N.Y. Mar. 1, 2005) ("Under Collins and its progeny, failure to address the discrimination
issue in an arbitration does not diminish the impact of that arbitration on a subsequent
discrimination action") (citations omitted).
2

12

failed to put forth new evidence that was not before the arbitrator or argued that the arbitrator's
impartiality was compromised. Even assuming that Plaintiff satisfied her prima facie case of
discrimination, Defendants presented substantial evidence demonstrating Plaintiff's poor work
performance and violation of Plant Rule #19 which Plaintiff has failed to establish was a pretext
for discrimination.
Plaintiff's attempts to attack the evidence presented are simply unavailing. For example,
Plaintiff argues that four of the purported errors that occurred between January 18 and 22, 2011
were incorrectly attributed to her because she did not work on those days. See Dkt. No. 77 at 22.
Plaintiff's own evidence, however, clearly establishes that she was, in fact, working on the above
dates. See Dkt. No. 72-1 at 37. For example, the time sheets provided show that Plaintiff worked
from January 17, 2011 at 11:14 p.m., through January 18, 2011 at 7:34 a.m. See id. While it does
appear that Plaintiff did not work the night shift between January 18 and January 19, she did work
the night shifts on January 20 (which ended on January 21) and January 21 (which ended on
January 22). See id. Similarly, Plaintiff argues that "[t]he list of errors also shows that Plaintiff
committed four errors on February 1, 2011 when she was only clocked in for twenty minutes."
Dkt. No. 77 at 22. A review of the time sheets, however, demonstrates that Plaintiff commenced
work on January 31, 2011 at 11:05 p.m., and her shift ended February 1, 2011 at 11:30 a.m. See
Dkt. No. 72-1 at 37.
Moreover, Plaintiff fails to demonstrate that she was similarly situated to other male
employees or that she was treated differently from other such individuals. As Defendants point
out, Plaintiff was not the only Special Metals employee to be demoted out of the Inspection
Department for performance related issues. See Dkt. No. 62-7 at 13 n.6. In February of 2010,
Mark Calenzo and Peter Decarlis were demoted for performance related issues. See Dkt. No. 6213

1 at ¶ 17. Further, as to her termination, Plaintiff admits that other employees were terminated for
violating Plant Rule #19. See Dkt. No. 62-5 at 45.
Further, Plaintiff admits that, despite not being aware of any other employees who were
offered last chance agreements after violating Plant Rule #19, she was offered such an agreement,
whereupon she would have been reinstated. See Dkt. No. 62-5 at 46-48. Plaintiff, however,
refused to sign the agreement when the Company refused to remove language in which Plaintiff
would have admitted to violating Plant Rule #19. See id. Moreover, Plaintiff admits that male
employees were terminated for violating Plant Rule #19. See id. at 73-74.
Plaintiff repeatedly claims during her deposition that she was discriminated against when
Defendants repeatedly provided her with inadequate training. See Dkt. No. 62-5 at 55-65.
Thereafter, however, she admits that Chris Debrango and Jim Krupa also received inadequate
training and that this poor training is why they ultimately requested to be removed from the
positions to which they were assigned. See id. at 62-63. The fact that these men allegedly
received the same poor training as Plaintiff clearly undermines her claimed gender discrimination.
Further, Plaintiff attempts to argue that Special Metals has inconsistently applied its
"disciplinary policy." Dkt. No. 77 at 22-23. Plaintiff discusses two male employees, Keith Ward
and Adam Smith, who violated Plant Rule #19 but were not terminated in support of her argument
that her own termination was pretextual. See id. Neither of these individuals, however, were
accused of the unauthorized removal of Company property or records. The allegations against
Mr. Ward involved "poor work performance" and an inability "to clean up following your
assigned tasks." Dkt. No. 81 at 7. Mr. Smith was accused of "horseplay on company property" in
violation of Plant Rule #19. See id. at 9. As such, contrary to Plaintiff's contentions, these
employees were not similarly situated to Plaintiff.
14

Moreover, the Court notes that, throughout her response, Plaintiff has relied upon the
declarations of Debra Bader and Michael Geddes, which were both executed on January 19, 2016.
See Dkt. Nos. 74 & 75. First, the Court notes that these declarations appear to be identical to the
declarations Ms. Bader and Mr. Geddes submitted in the case Bader v. Special Metals Corp., No.
6:11-cv-882 (N.D.N.Y.), which was dismissed by stipulation of the parties with the approval of
the court on June 10, 2014. The Bader and Geddes declarations contain facts related to a different
lawsuit, brought by an entirely different plaintiff, asserting different claims, relating to a different
time period. Specifically, Ms. Bader's declaration discusses events that allegedly occurred
between the start of her employment with Special Metals in 1978 to the last day of her
employment in April of 2010. See Dkt. No. 74. Plaintiff's claims in this case primarily concern
events that occurred between June 14, 2010, when she started working in the Inspection
Department as an Inspector Trainee, and June 17, 2011, when she was terminated from her
employment. The only mention of Plaintiff in Ms. Bader's declaration states that Ms. Bader was
identified as having information relevant to Plaintiff's case on January 8, 2010 and she was
subpoenaed to give deposition testimony in August of 2010. See Dkt. No. 74 at ¶¶ 34-35.
Interestingly, this action was not filed until October of 2012. As such, Ms. Bader herself admits
that she had information relevant to Plaintiff's previous lawsuit against Special Metals, not the
present matter. Similarly, Mr. Geddes' declaration discusses alleged events relating to Ms. Bader
from 2007 to April of 2010. See Dkt. No. 75. It is unclear what relevance these documents have
to Plaintiff's allegations in this case and they are insufficient to create an issue of fact.
In conclusion, the Court finds that Plaintiff has failed to meet her burden establishing that
Defendants' reasons for her demotion and termination were a pretext for discrimination.
Plaintiff's "termination occurred . . . only after a decision, based on substantial evidence, of an
15

undisputedly independent, neutral, and unbiased adjudicator that had the power to prevent the
termination." Collins, 305 F.3d at 119. The arbitrator's findings, which were made after three
days of testimony, are highly probative of the absence of discriminatory intent. Plaintiff's
conclusory allegations to the contrary, which are based almost entirely on her own beliefs, are
insufficient to create a question of fact as to whether Defendants' legitimate, non-discriminatory
reasons were, in fact, a pretext for discrimination. See Simpson v. N.Y.S. Dep't of Civil Service,
No. 02-cv-1216, 2005 WL 545349, *19 (N.D.N.Y. Mar. 1, 2005) (citations omitted).
Accordingly, the Court grants Defendants' motion for summary judgment as to Plaintiff's gender
discrimination claims.
C.

Federal and State Gender Retaliation
Title VII prohibits employers from discriminating against an employee who "has opposed

any practice made an unlawful employment practice" or "has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing[.]" 42 U.S.C. § 2000e-3(a).
Courts analyze Title VII retaliation claims according to the burden-shifting framework set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Terry v. Ashcroft, 336 F.3d 128,
141 (2d Cir. 2003) (citation omitted).
To make out a prima facie case of retaliation under Title VII, a plaintiff must adduce
evidence sufficient to permit a rational trier of fact to find:
"(1) that he engaged in protected participation or opposition under
Title VII . . . , (2) that the employer was aware of this activity, (3)
that the employer took adverse action against the plaintiff, and (4)
that 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 v. Westchester County Dep't of Soc. Servs., 461 F.3d 199, 205-06 (2d Cir. 2006) (other
citations omitted). "Upon such a showing, the defendant must articulate legitimate
16

non-discriminatory reasons for its actions, whereupon the plaintiff bears the burden of showing
that the defendant's explanations are pretext for the true discriminatory motive." Holt v.
KMI-Cont’l, 95 F.3d 123, 130 (2d Cir. 1996). Retaliation claims under the ADA and NYSHRL
are analyzed under the same framework as that employed in Title VII cases. Krasner v. City of
N.Y., 580 Fed. Appx. 1, 3-4 (2d Cir. 2014) (citing Treglia v. Town of Manlius, 313 F.3d 713, 719
(2d Cir. 2002)); see also Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 223 (2d Cir.
2001).
The first prong of this analysis is satisfied by Plaintiff's filing of charges with the EEOC.
Dkt. No. 62-1 at 182, 184. At the summary judgment stage, Plaintiff's allegation that she told
Defendants that she would be filing an EEOC charge is sufficient to satisfy the second prong.
Dkt. No. 27 at ¶ 26. Defendants' demotion and firing of Plaintiff qualify as "adverse employment
actions." Dkt. No. 76 at ¶¶ 46, 65; see also Phillips v. Bowen, 278 F.3d 103, 109 (2d Cir. 2002)
("Adverse employment actions include discharge, refusal to hire, refusal to promote, demotion,
reduction in pay, and reprimand").
Ultimately, because "Title VII retaliation claims must be proved according to traditional
principles of but-for causation," the plaintiff must show "that the unlawful retaliation would not
have occurred in the absence of the alleged wrongful action or actions of the employer." Univ. of
Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013); see, e.g., Kirkland v. Cablevision
Systems, 760 F.3d 223, 225 (2d Cir. 2014); Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 845
(2d Cir. 2013). "'[B]ut-for' causation does not require proof that retaliation was the only cause of
the employer's action, but only that the adverse action would not have occurred in the absence of
the retaliatory motive." Kwan, 737 F.3d at 846. To meet this burden, the plaintiff may rely on
evidence presented to establish her prima facie case as well as additional evidence. Such
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additional evidence may include direct or circumstantial evidence of discrimination. See Desert
Palace, Inc. v. Costa, 539 U.S. 90, 99-101 (2003). It is insufficient, however, for a plaintiff
merely to show that she satisfies "McDonnell Douglas' s minimal requirements of a prima facie
case" and to put forward "evidence from which a factfinder could find that the employer's
explanation . . . was false." James v. N.Y. Racing Ass'n, 233 F.3d 149, 157 (2d Cir. 2000).
Instead, the key is whether there is sufficient evidence in the record from which a reasonable trier
of fact could find in favor of plaintiff on the ultimate issue, i.e., whether the record contains
sufficient evidence "that retaliation was a but-for cause of the adverse employment action."
Weber v. City of New York, 973 F. Supp. 2d 227, 271 (E.D.N.Y. 2013) (citation omitted).
In the present matter, the Court finds that Plaintiff has failed to put forth evidence
demonstrating that her demotion or termination were causally related to any protected activity.
As Defendants correctly contend, Plaintiff's co-workers identified numerous errors that she was
making and brought them to Mr. Maschino's attention. See Dkt. No. 62-3 at Exh. E. Mr.
Sefcheck, the Union steward, advocated for Plaintiff to be given additional time to learn the job
and, as a result, was provided with more training opportunities in the mark-to-cut area than any of
the other trainees. See id. at ¶¶ 22-23; Dkt. No. 62-1 at ¶¶ 46-47. Moreover, Plaintiff admits that
Mr. Maschino, Mr. Sefcheck, Nick Farley, and other inspectors discussed the errors that she was
making while serving as an Inspector Trainee. See Dkt. No. 63-7 at 7-10. Further, Plaintiff does
not dispute that she was not the only Special Metals employee who was demoted out of the
Inspection Department for performance-related issues. In February of 2010, Mark Calenzo and
Peter Decarlis were demoted for performance-related issues. See Dkt. No. 62-1 at ¶ 17.
Moreover, this result is further supported by the fact that a considerable amount of time
separates the filing of the EEOC complaint and the alleged retaliatory conduct. Plaintiff filed
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EEOC charges on March 11, 2010 and April 14, 2010, which is the closest-in-time protected
conduct to her demotion. See Dkt. No. 27 at ¶ 24. Plaintiff, however, was not demoted until
February 25, 2011. See id. at ¶ 26. Considering the significant and repeated mistakes Plaintiff
made while serving as an Inspector Trainee, the nearly ten months that elapsed from the protected
activity to the demotion is insufficient to support the inference that the alleged retaliation would
not have occurred in the absence of the alleged improper motive. See Soloviev v. Goldstein, 104
F. Supp. 3d 232, 251 (E.D.N.Y. 2015) (citing Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834,
845 (2d Cir. 2013)) (other citation omitted); Imperato v. Otsego Cnty. Sheriff's Dep't, No.
3:13-cv-1594 (BKS/DEP), 2016 U.S. Dist. LEXIS 50155, *61 (N.D.N.Y. Apr. 14, 2016) (quoting
Perry v. NSARC, Inc., 424 Fed. Appx. 23, 26 (2d Cir. 2011); see also Clark Cnty. Sch. Dist. v.
Breeden, 532 U.S. 268, 273-74 (2001)).
As to her termination, Plaintiff does not dispute that, in the five-year period preceding her
termination, four male employees were terminated for violating Plant Rule #19. See Dkt. No. 623 at 2-5. The consistent application of the rule to male employees further demonstrates the lack
of retaliatory motive in Defendants' actions.
Additionally, Plaintiff asserts that there is direct evidence of retaliatory animus related to
her termination in the form of comments that were made about her. See Dkt. No. 77 at 18.
Plaintiff claims that she was told by co-workers that "they are out to get you" and "they are
gunning for you." Id. Plaintiff also asserts that Defendant Farley informed Mike Geddes that
Plaintiff was "not coming back, she doesn't have a case," which she claims is direct evidence of
retaliatory animus. Id. (citing Geddes Affm ¶ 10). Although Mike Geddes does claim that
Defendant Farley did make this statement, he claims that it was made "either in 2008 or 2009."
Dkt. No. 75 at ¶ 10. As such, contrary to Plaintiff's assertions, this statement, which occurred in
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either 2008 or 2009, in a context entirely unrelated to the present matter, is not "direct evidence of
retaliatory animus." Imperato, 2016 U.S. Dist. LEXIS 50155, at *61.
Considering the arbitrator's decision upholding Plaintiff's termination, and in light of the
foregoing, the Court finds that Plaintiff has failed to put forth evidence upon which a reasonable
juror could conclude that Defendants' non-retaliatory reasons for Plaintiff's demotion and
termination were a pretext for retaliation. Accordingly, the Court grants Defendants' motion for
summary judgment as to Plaintiff's retaliation claims.
D.

Federal and State Disability Discrimination and Retaliation
The ADA prohibits "discrimination against a qualified individual on the basis of disability

in regard to job application procedures, the hiring, advancement, or discharge of employees,
employee compensation, job training, and other terms, conditions, and privileges of employment."
42 U.S.C. § 12112(a). To establish a prima facie case of discrimination under the ADA, a
plaintiff must show that: "(1) his employer is subject to the ADA; (2) he was disabled within the
meaning of the ADA; (3) he was otherwise qualified to perform the essential functions of his job,
with or without reasonable accommodation; and (4) he suffered adverse employment action
because of his disability." Sista v. CDC Ixis North America, Inc., 445 F.3d 161, 169 (2d Cir.
2006) (citing Giordano v. City of New York, 274 F.3d 740, 747 (2d Cir. 2001)).
The ADA makes it unlawful for an employer to "discriminate against any individual
because such individual has opposed any act or practice made unlawful by this chapter or because
such individual made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this chapter." 42 U.S.C. § 12203(a). A retaliation
case under the ADA requires "a showing that the employee was engaged in an activity protected
by the ADA." Gold v. Carus, 131 Fed. Appx. 748, 750 (2d Cir. 2005) (quotations and citation
20

omitted). ADA retaliation claims are analyzed under the same framework as Title VII retaliation
claims. See Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 159 (2d Cir. 1999)
("[The Second Circuit] conclude[s] that it is appropriate to apply the framework used in analyzing
retaliation claims under Title VII in analyzing a claim of retaliation under the ADA").
"[The ADA's] anti-retaliation provision must be construed to cover a broad range of
employer conduct." Thompson v. North American Stainless, LP, 562 U.S. 170, 173 (2011)
(citation omitted). Keeping that premise in mind, the Second Circuit has held that "retaliatory coworker harassment, if sufficiently severe, may constitute adverse employment action so as to
satisfy the second element of the retaliation prima facie case." Martin v. New York State Dep't of
Corr. Servs., 224 F. Supp. 2d 434, 448 (N.D.N.Y. 2002) (citing Richardson v. New York State
Dep't of Correctional Serv., 180 F.3d 426, 446 (2d Cir. 1999)). In determining whether the coworker harassment is "sufficiently severe," the court should consider whether the plaintiff has
"endure[d] a materially adverse change in the terms and conditions of employment." Martin, 224
F. Supp. 2d at 448 (quoting Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir.
2000)) (citation omitted). Further, "material adversity is to be determined objectively, based on
the reactions of the reasonable employee." Rivera v. Rochester Genesee Regional Transp.
Authority, 743 F.3d 11, 25 (2d Cir. 2012).
Defendants argue that Plaintiff cannot establish a prima facie case of discrimination
because (1) she has not shown that the arbitrator's decision regarding her termination was wrong
as a matter of fact, or that the impartiality of the arbitration proceeding was somehow
compromised, and (2) Plaintiff is not disabled within the meaning of the ADA or Rehabilitation
Act. Dkt. No. 62-7 at 20-21.
In the present matter, the Court finds that Plaintiff has failed to establish that she was
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retaliated against in violation of the ADA or that she suffered an adverse employment action
because of her disability. First, the only disability mentioned in Plaintiff's amended complaint is
the hand injury that she suffered on or about February 28, 2006. See Dkt. No. 27 at ¶ 17. In her
response, Plaintiff now argues that, in addition to her hand, she has "COPD, asthma, emphysema,
chronic bronchitis, etc." and that her "'permanent medical restriction' with Special Metals
involves her respiratory condition." Dkt. No. 76 at ¶ 84. Second, Plaintiff does not make any
mention of what makes her a qualified individual with a disability in her EEOC complaint. See
Dkt. No. 72-1 at 15, 17. In the letter of determination, however, the EEOC makes clear that the
alleged disability is that Plaintiff has a "history of asthma and COPD." Id. at 21. In this letter, no
mention is made of Plaintiff's hand injury. See id. at 20-22.3 As such, the only allegation in the
amended complaint relating to disability discrimination/retaliation (Plaintiff's 2006 hand injury)
was not raised before the EEOC and, therefore, not administratively exhausted. As such, for this
reason alone, Plaintiff's ADA discrimination and retaliation claims are subject to dismissal.
Second, even assuming these claims are properly before the Court, the only plausible
allegation of disability discrimination is that Plaintiff was discriminated against because of her
disability in February of 2010 when she was denied the Inspection Trainee position. See Dkt. No.
77 at 15. Upon this denial, Plaintiff filed a charge with the EEOC and, in June of 2010, Plaintiff
entered into a Conciliation Agreement and was awarded, among other things, the Inspection
Trainee position she had sought. See Dkt. No. 82-1 at ¶ 9. Under the terms of the Conciliation
Agreement, Plaintiff "agree[d] not to sue [Special Metals] with respect to any allegations
contained in the . . . charge." Dkt. No. 63-1 at 5. As such, to the extent that Plaintiff is

Although Plaintiff filed a complaint with the EEOC in August of 2008 relating to her
hand injury, that complaint is not properly before the Court. See Dkt. No. 72-1 at 2-3.
3

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attempting to allege that her initial denial of the Inspector Trainee position was discrimination in
violation of the ADA, that claim was already disposed of through the Conciliation Agreement and
Plaintiff waived her right to sue as part of that settlement. See EEOC v. Bay Ridge Toyota, Inc.,
327 F. Supp. 2d 167, 171 (E.D.N.Y. 2004) ("When the parties enter into a conciliation agreement
. . . the employees waive their rights to sue with respect to the matters alleged in the EEOC
charge").
Moreover, as stated earlier, if an independent arbitrator's decision "follows an evidentiary
hearing and is based on substantial evidence", a plaintiff asserting a discrimination claim "must
present strong evidence that the decision was wrong as a matter of fact" or that the "impartiality
of the proceeding was somehow compromised" in order to survive a motion for summary
judgment. Collins, 305 F.3d at 119. "Absent new evidence or a reason to question the integrity
of those proceedings, the arbitral decision 'has probative weight regarding the requisite causal link
between an employee's termination and the employer's illegal motive.'" Young v. Benjamin Dev.
Co., 2009 U.S. Dist. LEXIS 18280, *24 (S.D.N.Y. Feb. 17, 2009) (quoting Collins, 305 F.3d at
120). Here, Plaintiff has failed to allege that the decision was wrong as a matter of fact or that the
impartiality of the proceeding was somehow compromised. Since Plaintiff has not offered any
evidence or reason to question the integrity of the arbitration proceedings, she has failed to
establish a causal link between her termination and her alleged disability. Finally, even assuming
these other ailments were properly alleged in the amended complaint as part of Plaintiff's ADA
claims, Plaintiff has failed to set forth any evidence, other than her own conclusory allegations,
that she was discriminated against or retaliated against in violation of the ADA.
Based on the foregoing, the Court grants Defendants' motion for summary judgment with
respect to her disability discrimination and retaliation claims.
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E.

Hostile Work Environment
In their motion, Defendants contend that, to the extent that Plaintiff could be attempting to

allege a hostile work environment claim, it must be dismissed. See Dkt. No. 62-7 at 33-34.
Specifically, Defendants contend that Plaintiff failed to raise this claim with the EEOC and,
therefore, it is not exhausted and it is not reasonably related to either of the EEOC charges. See
id. at 32-33. Alternatively, Defendants argue that the amended complaint simply alleges that
Plaintiff was "'repeatedly and daily subject to silent treatment, taunting, and humiliation,'" which
they claim fails to plausibly allege a hostile work environment claim. Id. (quoting Dkt. No. 27 at
¶ 34). In her response, Plaintiff provides some additional details regarding this alleged claim.
See Dkt. No. 77 at 25-26.
First, the Court finds that neither of the relevant EEOC charges are reasonably related to
the alleged hostile work environment claim and, therefore, the claim has not been exhausted. In
EEOC Charge No. 525-2011-00320, Plaintiff complained only of retaliation in violation of the
ADA. See Dkt. No. 62-1 at 182. In the EEOC charge relating to her termination, Plaintiff alleges
only that, "[u]pon information and belief, male employees and/or employees without a disability
and or employees who have not complained of discrimination have not been terminated for
misconduct based on [Plant Rule #19]." Id. at 184-85. The allegations in the EEOC charges,
which make only vague and general allegations regarding the alleged disparate treatment of men
and women, are insufficient to exhaust a hostile work environment claim. See Morris v. David
Lerner Assoc., 680 F. Supp. 2d 430, 437 (E.D.N.Y. 2010) (citing cases); Fleming v. Verizon N.Y.,
Inc., 419 F. Supp. 2d 455, 464 (S.D.N.Y. 2005) (finding hostile work environment claim not
reasonably related to EEOC charge because EEOC charge only made general allegations
regarding employer's disparate treatment of men and women). Accordingly, the Court finds that
24

Plaintiff failed to exhaust any alleged hostile work environment claim. See Bader v. Special
Metals Corp., 985 F. Supp. 2d 291, 328-29 (N.D.N.Y. 2013) (holding that the alleged hostile
work environment claim was not reasonably related to the EEOC complaint) (citing cases).
Even assuming Plaintiff did exhaust this claim, the Court finds that she failed to plausibly
allege a hostile work environment claim. Plaintiff's amended complaint contains eleven causes of
action: seven gender and disability discrimination claims and four gender and disability
retaliation claims. Not once does Plaintiff allege that she was subject to a hostile work
environment. Further, the only allegations in the amended complaint that could be considered to
support such a claim, fail to plausibly allege such a cause of action. See La Marco v. N.Y.S.
Nurses Ass'n, 118 F. Supp. 2d 310, 316-17 (N.D.N.Y. 2000) (citing Williams v. County of
Westchester, 171 F.3d 98, 100 (2d Cir. 1999)).
Moreover, even assuming that Plaintiff's amended complaint plausibly alleges such a
claim (which it does not), notably absent from Plaintiff's response is any allegation that she
reported this allegedly pervasive hostile conduct to a supervisor or human resources, despite a
policy in place regarding such conduct. Special Metals has established that, through its antiharassment and discrimination policies and training, it "exercised reasonable care to prevent and
correct promptly any sexually harassing behavior." Burlington Indus., Inc. v. Ellerth, 524 U.S.
742, 765 (1998); see also Dkt. No. 62-1 at ¶ 45. In fact, Plaintiff has admitted that, when brought
to its attention, inappropriate material was removed from the workplace. Specifically, Plaintiff
complains that management did not adequately respond when she informed them that someone
had written something inappropriate about her on the men's bathroom wall. See Dkt. No. 62-5 at
75-79. Thereafter, however, Plaintiff admits that the writing was removed from the bathroom
wall on the same day she brought it to her supervisor's attention. See id. at 78. The undisputed
25

facts clearly establish that, despite the reasonable care taken to avoid and prevent hostile work
conditions, Plaintiff "unreasonably failed to take advantage of [these] preventive or corrective
opportunities . . . or to avoid harm otherwise." Burlington Indus., Inc., 524 U.S. at 765; see also
Petrosino v. Bell Atlantic, 385 F.3d 210, 225 (2d Cir. 2004).
Based on the foregoing, the Court grants Defendants' motion for summary judgment as to
Plaintiff's hostile work environment claim.
F.

Rehabilitation Act
Defendants contend that, in addition to all of the reasons discussed above, Plaintiff's claim

under the Rehabilitation Act is subject to dismissal because Special Metals was not a recipient of
federal funds during Plaintiff's employment, as required under the Act. See Dkt. No. 62-7 at 3637. Plaintiff failed to respond to this argument and, therefore, the Court finds that she has
abandoned this claim. See Blake v. Race, 487 F. Supp. 2d 187, 217 (E.D.N.Y. 2007) (citing
cases). In the alternative, since Plaintiff failed to present any evidence demonstrating that Special
Metals received federal assistance and is therefore subject to the Rehabilitation Act, the Court
grants Defendants' motion for summary judgment. See Reyes v. Fairfield Properties, 661 F.
Supp. 2d 249, 263 (E.D.N.Y. 2009) (citation omitted).
G.

Tenth and Eleventh Causes of Action
In her Tenth and Eleventh Causes of action, Plaintiff asserts claims under Article I,

Section 11 of the New York State Constitution. As Defendants correctly contend, these claims
must be dismissed. Where, as here, adequate remedies exist under federal and state laws to
protect the asserted rights, there is "no private right of action under the New York State
Constitution." G.D.S. ex rel. Slade v. Northport–E. Northport Union Free Sch. Dist., 915 F.
Supp. 2d 268, 280 (E.D.N.Y. 2012) (citations omitted); Kalsi v. N.Y.C. Transit Auth., 62 F. Supp.
26

2d 745, 761 (E.D.N.Y. 1998).
Based on the foregoing, the Court grants Defendants' motion for summary judgment as to
these claims.
IV. CONCLUSION
After carefully reviewing the record in this matter, the parties' submissions and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Defendants' motion for summary judgment (Dkt. No. 62) is GRANTED in
its entirety; and the Court further
ORDERS that Plaintiff's claims are DISMISSED with prejudice; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on all parties in accordance with the Local Rules; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in Defendants' favor and close
this case.
IT IS SO ORDERED.
Dated: September 6, 2016
Albany, New York

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