Serrano v. New York State et al

Filing 85

MEMORANDUM-DECISION AND ORDER granting 72 Motion for Summary Judgment. Signed by U.S. District Judge Mae A. D'Agostino on 3/30/17. (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
ALELIE SERRANO,
Plaintiff,
vs.

12-CV-1592
(MAD/CFH)

NEW YORK STATE DEPARTMENT OF
ENVIRONMENTAL CONSERVATION and ERIC
TUPAJ, LIEUTENANT, DIVISION OF LAW
ENFORCEMENT,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

OFFICE OF LOWELL R. SIEGEL
23 Indian Ladder Drive
Altamont, New York 12009
Attorneys for Plaintiff

LOWELL R. SIEGEL, ESQ.

OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
The Capitol
Albany, New York 12224
Attorneys for Defendants

JAMES SEAMAN, AAG

Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiff, Alelie Serrano, commenced this suit against her employer, New York State
Department of Environmental Conservation ("DEC"), and various DEC employees on October
24, 2012. Plaintiff was terminated from her position on January 25, 2013, and she filed an
amended complaint on February 13, 2013. On December 20, 2013, the Court granted in part and
denied in part Defendants' motion to dismiss, leaving the following claims: Title VII retaliation,
hostile work environment, and disparate treatment against DEC; section 1983 equal protection

claims against Defendants Gerould and Tupaj, individually; and New York Human Rights Law
("HRL") aid and abet claims against Defendants Gerould and Tupaj. See Dkt. No. 17. On
February 23, 2015, the Court granted Defendants' motion to dismiss all claims against Defendant
Gerould, leaving only Tupaj and DEC as Defendants. See Dkt. No. 31. Pending before the Court
is Defendants' motion for summary judgment. See Dkt. No. 72-1.
II. BACKGROUND
Plaintiff was employed at DEC as a dispatcher from October 2006 until January 2013.
See Dkt. No. 72-2 at ¶¶ 21-22, 590. During this time, Plaintiff was the only dispatcher at DEC of
Puerto Rican/Hispanic descent. See Dkt. No. 9 at ¶ 30. One of the main reasons Plaintiff was
hired was because of her fluency in Spanish. See id. at ¶ 32. Plaintiff worked in the Ray Brook
office from October 2006 until February 2010, when she was transferred to Albany. See Dkt. No.
72-2 at ¶¶ 21-22, 405.
On March 4, 2008, Plaintiff filed a complaint with DEC's Affirmative Action Bureau
claiming that she had been subjected to racial discrimination and a hostile working environment.
See id. at ¶ 48. On July 29, 2008, DEC Affirmative Action Officer Juan Abadia issued a
memorandum recommending, inter alia, that the Ray Brook unit be provided with sensitivity and
non-discrimination training. See id. at ¶¶ 79-81.
On August 29, 2008, Plaintiff filed her first complaint (Case No. 10127865) with the New
York State Division of Human Rights ("DHR") charging DEC with unlawful discriminatory
practices. See id. at ¶ 97. On October 14, 2008, Plaintiff filed a second complaint (Case No.
10128843) with DHR again alleging discrimination. See id. at ¶ 118. On March 23, 2009, DHR
issued a report finding that "there is probable cause that Complainant may have been subjected to
discriminatory treatment, including retaliation, and said treatment may be ongoing." Dkt. No. 112

7 at 6. On March 25, 2010, DHR issued an order recommending dismissal of Plaintiff's two
complaints (Case Nos. 10127865 and 10128843). See Dkt. No. 76-95. On October 14, 2010, the
Commissioner of DHR issued a Notice and Final Order adopting the March 25, 2010 dismissal of
those complaints. See Dkt. No. 76-96.
On March 30, 2010, five days after DHR recommended dismissal of her two prior DHR
charges, Plaintiff filed a third complaint (Case No. 10140417) with DHR, bearing Federal Charge
No. 16GB002729. See Dkt. No. 72-2. In that complaint, Plaintiff alleged that she had been
discriminated against in retaliation for filing her two previous complaints with DHR, see Dkt. No.
72-27 at 2, and because of her national origin, see id. at 5. Plaintiff also referenced her two prior
DHR complaints, see id., and specifically identified numerous acts in support of her claim,
including the following: (1) DEC personnel denied her training opportunities, see id. at 6, 11, 1314, 21; (2) an aerosol can of "bullshit repellent" was placed on Sergeant Cranker's desk, see id. at
12; (3) DEC employee Alicia Bodmer placed a photo of a target on Plaintiff's work station, see id.
at 20; (4) DEC employee Ann MacBride struck Plaintiff on the head with a stack of papers, see
id. at 16; (5) Plaintiff was provided limited opportunities to work overtime, see id. at 16-17; and
(6) MacBride placed a noose over Plaintiff's work locker, see id. at 17. DHR determined that this
charge did not establish probable cause of discrimination. See Dkt. No. 11-11. On February 14,
2011,1 the Equal Employment Opportunity Commission ("EEOC") adopted DHR's findings on
Plaintiff's third charge (EEOC Charge No. 16G-2010-02729) and issued a right-to-sue letter
containing the following language: "This will be the only notice of dismissal and of your right to
sue that we will send you. You may file a lawsuit against the respondent(s) under federal law

A stamp on the right-to-sue letter indicates that DEC received the document on February
17, 2011. Defendants contend, and Plaintiff does not dispute, that Plaintiff would have received
the letter no later than February 21, 2011. See Dkt. No. 72-1 at 7.
1

3

based on this charge in federal or state court. Your lawsuit must be filed WITHIN 90 DAYS of
your receipt of this notice; or your right to sue based on this charge will be lost." Dkt. No. 72-31
at 37.
On May 18, 2012, Plaintiff filed a charge of retaliation and discrimination based on her
race/national origin with the EEOC (EEOC Charge No. 525-2012-00451). See Dkt. No. 72-2 at ¶
472. That charge referenced "recent incidents" of retaliation, harassment, and disparate treatment
that had occurred since the fall of 2011. See Dkt. No. 74-3 at 5. The EEOC determined it was
"unable to conclude that the information establishes a violation of Federal law on the part of
Respondent." Dkt. No. 11-2 at 2.
On July 26, 2012, the EEOC issued a second right-to-sue letter, allowing Plaintiff ninety
days to file a suit against DEC. See id. at 3. Plaintiff commenced this action on the ninetieth day,
October 24, 2012. See Dkt. No. 1. On January 4, 2013, Plaintiff filed what she describes as
another hostile work environment and discrimination complaint with the Affirmative Action
Bureau of DEC. See Dkt. No. 9 at ¶ 69. On January 25, 2013, Plaintiff was terminated via a
letter signed by Director Peter Fanelli stating in part, "[t]he reasons for this decision include your
persistent and unfounded complaints that have disrupted the workplace, conduct that undermined
the mission of the unit, insubordination, and time and attendance concerns." See Dkt. No. 15-3 at
2; see also Dkt. No. 72-2 at ¶ 590.
III. DISCUSSION
A.

Title VII Claims
1. Statute of Limitations
An employment discrimination suit under Title VII against the government must be filed

within ninety days of receiving a right-to-sue letter from the EEOC. See 42 U.S.C. § 2000e4

5(f)(1). "This requirement is strictly construed and a court may not extend the limitations period
in absence of equitable considerations." Barna v. Morgan, 341 F. Supp. 2d 164, 167 (N.D.N.Y.
2004) (citing Johnson v. Al Tech Specialties Steel Corp., 731 F.2d 143, 146 (2d Cir. 1984)).
If a plaintiff files an EEOC charge that is timely as to any incident of discrimination, the
continuing violation exception permits courts to consider "'claims that the discriminatory acts
were part of a continuing policy and practice of prohibited discrimination,'" Lugo v. City of New
York, 518 Fed. Appx. 28, 29 (2d Cir. 2013) (quoting Valtchev v. City of New York, 400 Fed.
Appx. 586, 588 (2d Cir. 2010)), so long as "'one act of discrimination in furtherance of the
ongoing policy occurred within the limitations period,'" id. (quoting Patterson v. County of
Oneida, 375 F.3d 206, 220 (2d Cir. 2004)). However, while the continuing violation doctrine
may toll the statutory period within which a claimant must file a complaint with the EEOC, it
does not eliminate the requirement that a claimant must file her complaint in court within ninety
days of receiving a right-to-sue letter. See Bowen-Hooks v. City of New York, 13 F. Supp. 3d 179,
207 (E.D.N.Y. 2014) ("The Court . . . concludes that Plaintiff's continuing violation claim cannot
revive her otherwise barred claim where she opted not to act within 90 days of her 2006 EEOC
right-to-sue letter") (collecting cases); see also Torregiano v. Monroe Cmty. Coll., No.
11–CV–6300, 2015 WL 6641784, *10 (W.D.N.Y. Oct. 28, 2015) (holding that "a claimant may
not 'revive' stale claims, which were not asserted in a district-court action within ninety days after
receiving a right-to-sue letter, by re-asserting them in a new EEOC complaint and then obtaining
a new right-to-sue letter").
In the present matter, Plaintiff received a right-to-sue letter from the EEOC in February
2011, see Dkt. No. 72-31 at 37, in response to Plaintiff's complaint alleging that she had been
discriminated against through March 30, 2010, see Dkt. No. 72-27 at 4, in retaliation for filing
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two two previous complaints with DHR, see id. at 2, and because of her national origin, see id. at
5. However, Plaintiff did not file the complaint in this action until October 24, 2012, well more
than ninety days later. See Dkt. No. 1. Accordingly, to the extent Plaintiff relies on incidents that
were a part of her March 30, 2010 DHR complaint, "they are barred from consideration by the
Court because of Plaintiff's failure to sue within 90 days of receiving a right-to-sue letter in
connection with those claims" except insofar as the Court may view those acts as "background
information providing context for Plaintiff's claims." Bowen-Hooks, 13 F. Supp. 3d at 206-07,
208.
2. Exhaustion
"Exhaustion of administrative remedies through the EEOC is 'an essential element' of . . .
Title VII . . . and, as such, a precondition to bringing such claims in federal court." Legnani v.
Alitalia Linee Aeree Italiane, S.P.A, 274 F.3d 683, 686 (2d Cir. 2001) (quoting Francis v. City of
New York, 235 F.3d 763, 768 (2d Cir. 2000)). While "a district court may 'hear Title VII claims
that either are included in an EEOC charge or are based on conduct subsequent to the EEOC
charge which is "reasonably related" to that alleged in the EEOC charge,'" Danials-Kirisits v.
N.Y. State Office of Court Admin., No. 05–CV–800, 2013 WL 1755663, *5 (W.D.N.Y. Apr. 24,
2013) (quoting Butts v. City of N.Y. Dep't of Hous. Pres. & Dev., 990 F.2d 1397, 1401 (2d Cir.
1993)), a plaintiff has a "'duty to include all relevant alleged discriminatory conduct when she
file[s] the EEOC charge,'" id. (quoting Townsend v. Exchange Ins. Co., 196 F. Supp. 2d 300, 313
(W.D.N.Y. 2002)). Thus, a plaintiff may not rely in federal court on "additional specific
instances of misconduct that . . . occurred prior to the filing of [her EEOC] charges" but which
were not alleged in those charges. Id.; see also Lester v. M&M Knopf Auto Parts, No.
04–CV–850, 2006 WL 2806465, *7 (W.D.N.Y. Sept. 28, 2006) ("None of the other layoffs are
6

referenced in the Charges, nor can they be construed as 'reasonably related' to the January 22,
2004 layoff because they predate it"); Samborski v. W. Valley Nuclear Servs. Co., Inc., No.
99–CV–213, 2002 WL 1477610, *5 (W.D.N.Y. June 25, 2002) ("Samborski may not rely on any
alleged conduct that occurred before January 5, 1999 other than [that] referenced in her EEOC
charge"). Accordingly, the Court will not consider alleged conduct that occurred before May 18,
2012 which was not raised in her May 18, 2012 EEOC charge. The Court does, however, find
that Defendants' alleged conduct post-dating Plaintiff's May 18, 2012 EEOC charge is
"reasonably related" to that charge's allegations and will therefore be considered by the Court.

3. Hostile Work Environment
"In order to establish a hostile work environment claim under Title VII, a plaintiff must
produce enough evidence to show that 'the workplace is permeated with discriminatory
intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of
the victim's employment and create an abusive working environment.'" Gorzynski v. JetBlue
Airways Corp., 596 F.3d 93, 102 (2d Cir. 2010) (quotation omitted). "A plaintiff must show not
only that she subjectively perceived the environment to be abusive, but also that the environment
was objectively hostile and abusive." Id. "Generally, unless an incident of harassment is
sufficiently severe, 'incidents must be more than episodic; they must be sufficiently continuous
and concerted in order to be deemed pervasive.'" Id. (quotation omitted). Moreover, "[i]n
evaluating a hostile work environment claim, a court may not consider incidents unrelated to the
plaintiff's protected characteristics." Guerra v. Murphy, No. 15–CV–1168, 2016 WL 7480405,
*7 (N.D.N.Y. Dec. 29, 2016); see also Daniel v. T & M Prot. Res. LLC, 87 F. Supp. 3d 621, 634
(S.D.N.Y. 2015) ("As a threshold matter, some of the conduct Daniel complains of does not
7

appear to be related to his race, perceived national origin, or sex. Such incidents 'must be
removed from consideration'" (quoting Alfano v. Costello, 294 F.3d 365, 377 (2d Cir. 2002)).
"Beyond demonstrating a hostile work environment, a plaintiff must show a basis for
imputing the objectionable conduct to the employer." Gorzynski, 596 F.3d at 103. "When . . . the
alleged harasser is in a supervisory position over the plaintiff, the objectionable conduct is
automatically imputed to the employer." Id. (citing Burlington Indus., Inc. v. Ellerth, 524 U.S.
742, 765 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998)).
It has been repeatedly held that "ordinary tribulations of the workplace, such as the
sporadic use of abusive language, gender-related jokes, and occasional teasing" are not
objectively severe enough to establish a hostile work environment. Faragher, 524 U.S. at 778.
The test not only looks at isolated incidents, but requires consideration of all the circumstances
present in the workplace contributing to its environment, such as the amount that the alleged
conduct interferes with an employee's work performance, its frequency, severity, and threatening
nature. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993).
"For 'racist comments, slurs, and jokes' to be actionable as a hostile work environment,
there generally 'must be more than a few isolated incidents of racial enmity.'" Davis-Bell v.
Columbia Univ., 851 F. Supp. 2d 650, 673 (S.D.N.Y. 2012) (quoting Schwapp v. Town of Avon,
118 F.3d 106, 110 (2d Cir. 1997)). Rather, "'there must be a steady barrage of opprobrious racist
comments.'" Id. (quoting Schwapp, 118 F.3d at 110).
In the present matter, Plaintiff alleges only two specific incidents during the relevant
period when a DEC employee made derogatory remarks concerning Plaintiff's race or national
origin: (1) on or about August 31, 2012, Plaintiff overheard Christopher Laurenzo refer to
Plaintiff as a "spic" while he was speaking to another DEC employee, see Dkt. No. 72-50 at 4488

49; Dkt. No. 76-9 at 6; and (2) on or about January 4, 2013, Christopher Laurenzo called Plaintiff
a "spic" under circumstances that Plaintiff does not recall, see Dkt. No. 72-50 at 449-50; Dkt. No.
76-9 at 6. The Court finds that "these comments, while plainly offensive, were isolated incidents
in contrast to the cases where summary judgment is denied because a plaintiff has alleged regular
and repeated use [of] offending statements." Lytle v. JPMorgan Chase, No. 08–CV–9503, 2012
WL 393008, *26 (S.D.N.Y. Feb. 8, 2012), report and recommendation adopted sub nom., Lytle v.
JP Morgan Chase, 2012 WL 1079964 (S.D.N.Y. Mar. 30, 2012), aff'd, 518 Fed. Appx. 49 (2d
Cir. 2013) (collecting cases); see also Liburd v. Bronx Lebanon Hosp. Ctr., No. 07–CV–11316,
2009 WL 900739, *8 (S.D.N.Y. Apr. 3, 2009) (finding the use of the expression "black ass" to
refer to the plaintiff on three occasions, even when considered in conjunction with other offensive
conduct such as ignoring and monitoring the plaintiff's whereabouts, was insufficient to support a
hostile work environment claim); Pagan v. N.Y. State Div. of Parole, No. 98–CV–5840, 2003 WL
22723013, *6 (S.D.N.Y. Nov. 18, 2003) (finding that "four specific instances when [a defendant]
made derogatory remarks concerning Puerto Ricans or Hispanics in [the plaintiff's] presence," one
of which involved the use of the term "spics," did not establish a hostile work environment)
(collecting cases). Moreover, although "[f]acially neutral incidents may be included . . . among
the ''totality of the circumstances' that courts consider in any hostile work environment claim, so
long as a reasonable fact-finder could conclude that they were, in fact, based on [Plaintiff's
protected characteristic]," the two race-related incidents perpetrated by Laurenzo "do not justify
the inference that wholly different, facially []neutral incidents" not involving Laurenzo "were part
of any campaign to harass [Plaintiff] on the basis of her [race or national origin]." Alfano, 294
F.3d at 378.
For the foregoing reasons, Defendants' motion for summary judgment on Plaintiff's Title
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VII hostile work environment claim is granted.
4. Prima Facie Case of Discrimination
Title VII provides that it is unlawful for an employer "to discharge any individual, or
otherwise to discriminate against any individual . . . because of such individual's race . . . or
national origin." 42 U.S.C. § 2000e-2(a)(1). To assert a prima facie Title VII discrimination
claim, a plaintiff must establish that:
(1) [s]he is a member of a protected class; (2) [s]he is competent to
perform the job or is performing h[er] duties satisfactorily; (3) [s]he
suffered an adverse employment decision or action; and (4) the
decision or action occurred under circumstances giving rise to an
inference of discrimination based on h[er] membership in the
protected class.
Dotson v. City of Syracuse, No. 11–CV–620, 2013 WL 1293775, *10 (N.D.N.Y. Mar. 27, 2013)
(citations omitted).
To constitute a Title VII adverse employment action, there must be a "materially adverse"
change in working conditions which "might be indicated by a termination of employment, a
demotion evidenced by a decrease in wage or salary, a less distinguished title, . . . or other indices
. . . unique to a particular situation." Giscombe v. N.Y.C. Dep't of Educ., No. 12–CV–464, 2013
WL 829127, *5 (S.D.N.Y. Feb. 28, 2013) (citations omitted); see also Ellerth, 524 U.S. at 761
("A tangible employment action constitutes a significant change in employment status, such as
hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a
decision causing a significant change in benefits"). Further, a "tangible employment action in
most cases inflicts direct economic harm" and "requires an official act of the enterprise" which
must be done with the "official power of the enterprise," not merely inflicted by a co-worker.
Ellerth, 524 U.S. at 762.
The plaintiff must "raise a plausible inference that the action was taken on account of [her]
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race or national origin." Acosta v. City of New York, No. 11–CV–856, 2012 WL 1506954, *5
(S.D.N.Y. Apr. 26, 2012); see also Griffin v. Brighton Dental Grp., No. 09–CV–6611, 2013 WL
1221915, *5 (W.D.N.Y. Mar. 5, 2013) ("Evidence that an individual was treated differently from
other employees, standing alone, is insufficient to prove discrimination"). Evidence that a
plaintiff was treated less favorably than other, similarly-situated employees who were not
members of the plaintiff's protected class supports an inference of discriminatory intent. See
Griffin, 2013 WL 1221915, at *6. Also, evidence that the plaintiff was subjected to offensive
treatment, "such as name-calling, slurs, or bad jokes," directed at the plaintiff's membership in a
protected class also supports an inference of discrimination. Id. (internal quotations omitted).
In the present matter, Defendants concede the first two elements, i.e., that Plaintiff is a
member of a protected class and that she was qualified for her position. Defendants also concede
that Plaintiff's termination on January 25, 2013 constitutes an adverse employment decision but
contend that she suffered no other adverse employment actions. See Dkt. No. 72-1 at 18-20.
While Plaintiff takes issue with this characterization, she does not identify any adverse
employment decision other than termination, see Dkt. No. 81-1 at 17, and agrees that the proper
framing of the fourth element is "whether the circumstances of the termination give rise to an
inference of discrimination," id. As explained below, the Court finds that Plaintiff has failed to
establish this element.
First, Plaintiff alleges that certain invidious comments made by DEC personnel raise an
inference of discrimination. See Dkt. No. 81-1 at 17-19. However, the majority of these
comments are time-barred and, in any event, occurred many years before Plaintiff's termination.
As for Laurenzo's alleged use of a racial slur on two occasions, Laurenzo did not terminate
Plaintiff, nor is Laurenzo Plaintiff's supervisor. See Dkt. No. 81-45 at ¶ 594; see also Dkt. No.
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72-20 at ¶ 11. Therefore, Laurenzo's alleged comments are insufficient to establish that Plaintiff
was terminated for a discriminatory reason. See Tomassi v. Insignia Fin. Grp., Inc., 478 F.3d
111, 115 (2d Cir. 2007) ("[R]emarks made by someone other than the person who made the
decision adversely affecting the plaintiff may have little tendency to show that the decision-maker
was motivated by the discriminatory sentiment expressed in the remark") (collecting cases); see
also Daniel, 87 F. Supp. 3d at 643 (finding that a plaintiff's superior's harassing and
discriminatory conduct did not give rise to an inference of discrimination where a committee
decided to terminate the plaintiff, even though the superior sat on that committee); Lytle, 2012
WL 393008, at *23 ("For example, even the most offensive comment related to his race,
Jorquera's use of the term 'nigga,' does not suggest a discriminatory motivation underlying Lytle's
termination because Jorquera did not have a role in Lytle's termination").
Second, Plaintiff alleges that Defendants' failure to correct the behavior of those who
allegedly made invidious comments supports an inference of discrimination. See Dkt. No. 81-1 at
19-21. Again, the majority of comments raised by Plaintiff are time-barred. As for Laurenzo's
alleged use of a racial slur on two occasions, the record contains no evidence that Plaintiff
reported the incidents to her supervisors or Fanelli, the individual who ultimately terminated
Plaintiff. See Dkt. No. 72-21 at ¶ 35. Accordingly, there is no basis for imputing Laurenzo's
alleged bias to DEC. See Daniel, 87 F. Supp. 3d at 643-44 (finding no "basis for imputing [a
superior's] alleged motivation" where there was no evidence that the superior "ma[d]e any
discriminatory statements in front of the other executives" with termination power and the
plaintiff "did not report [the superior's] conduct to [the executives]").
Third, Plaintiff alleges that discrimination can be inferred because she was terminated
purportedly for filing multiple complaints while other co-workers who filed complaints were not.
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See Dkt. No. 81-1 at 21-22. In order to raise an inference of discrimination by showing that she
was subject to disparate treatment, a plaintiff "must show she was 'similarly situated in all
material respects' to the individuals with whom she seeks to compare herself." Graham v. Long
Island R.R., 230 F.3d 34, 39 (2d Cir. 2000) (quoting Shumway v. United Parcel Serv., Inc., 118
F.3d 60, 63 (2d Cir. 1997)). "What constitutes 'all material respects' . . . must be judged based on
(1) whether the plaintiff and those he maintains were similarly situated were subject to the same
workplace standards and (2) whether the conduct for which the employer imposed discipline was
of comparable seriousness." Id. at 40. In the present matter, Plaintiff filed hundreds of pages of
grievances, an order of magnitude greater than that filed by her co-workers. See, e.g., Dkt. No.
72-3 at ¶ 8 ("Over the course of the 15 years that I worked in the area of affirmative action, I have
never received anywhere near the amount of documents I received from Ms. Serrano. She sent
me ten times more material than any other complainant I ever worked with"). "Other courts have
held that disparities of this or lesser magnitude warrant summary judgment." Toussaint v. NY
Dialysis Servs., Inc., No. 14–CV–5069, 2017 WL 456471, *13 (S.D.N.Y. Feb. 2, 2017)
(collecting cases). Accordingly, the Court finds that Plaintiff has failed to establish that she was
in all material respects to her co-workers who filed complaints.
For the foregoing reasons, Defendants' motion for summary judgment on Plaintiff's Title
VII discrimination claim is granted.
5. Retaliation
a. Prima facie case
To establish a Title VII retaliation claim, a plaintiff must establish that: "'(1) she was
engaged in an activity protected under Title VII; (2) the employer was aware of plaintiff's
participation in the protected activity; (3) the employer took adverse action against plaintiff; and
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(4) a causal connection existed between the plaintiff's protected activity and the adverse action
taken by the employer.'" Gordon v. Bd. of Educ., 232 F.3d 111, 116 (2d Cir. 2000) (quotation
omitted). "Protected activity" includes any "action taken to protest or oppose statutorily
prohibited discrimination." Cruz v. Coach Stores, Inc., 202 F.3d 560, 566 (2d Cir. 2000). Proof
of causation can be shown either indirectly through circumstantial evidence, or "directly, through
evidence of retaliatory animus directed against the plaintiff by the defendant." Gordon, 232 F.3d
at 117. In order to show a retaliatory motive by means of circumstantial evidence, there must be
temporal proximity between the adverse employment action and the protected activity. See
Muhammad v. Juicy Couture/Liz Clairborne, Inc., No. 09–CV–8978, 2010 WL 4032735, *6
(S.D.N.Y. July 30, 2010).
In the present matter, Plaintiff has sufficiently established a prima facie case of retaliation.
There is no doubt that Plaintiff "engaged in protected activity when she complained . . . about
harassment, filed her EEOC charge and filed her lawsuit." Richardson v. N.Y. State Dep't of
Corr. Serv., 180 F.3d 426, 443 (2d Cir. 1999); Matima v. Celli, 228 F.3d 68, 79 (2d Cir. 2000)
("Matima's formal charge of discrimination [filed with DHR] constituted protected activity under
Title VII"). Both sides acknowledge that Plaintiff's termination constitutes the relevant adverse
employment action, see Dkt. No. 72-1 at 28; Dkt. No. 81-1 at 28, and it is clear that DEC was
aware of Plaintiff's participation in protected activities, see Dkt. No. 15-3 at 2.
As for the fourth element, the Court finds that Plaintiff's termination letter does not
constitute direct evidence of retaliation because its thrust is that Plaintiff was fired for a
legitimate, non-retaliatory reason: the "disrupt[ion]" engendered by her complaints. Dkt. No. 153 at 2. See Matima, 228 F.3d at 79 (finding that "insubordination and conduct that disrupts the
workplace are 'legitimate reasons for firing an employee,' . . . "even when a complaint of
14

discrimination is involved") (quoting Holt v. KMI-Continental, Inc., 95 F.3d 123, 130 (2d Cir.
1996)); see also Harrison v. N. Shore Univ. Hosp., No. 04–CV–2033, 2008 WL 656674, *10
(E.D.N.Y. Mar. 6, 2008) ("Moreover, an employer may legitimately terminate employment where
the employee's conduct is insubordinate or disruptive, even if that conduct involves complaints of
discrimination").
Turning to indirect evidence of retaliation, the Court acknowledges that "[m]ere
complaints of unfair treatment" not related to a protected characteristic "are not protected speech
under Title VII," Dkt. No. 72-1 at 25-26 (citing McNutt v. Nasca, 10–CV–1301, 2013 WL
209469, *16 (N.D.N.Y. Jan. 17, 2013)), and that "district courts in this Circuit have consistently
held that a passage of two months" constitutes "the outer limits beyond which a temporal
relationship is too attenuated to establish a causal relationship," id. at 30 (citing Panagopoulos v.
N.Y. State Department of Transportation, 172 F. Supp. 3d 597 (N.D.N.Y. 2016)). Here, however,
the record establishes that Abadia understood based on Plaintiff's history that Plaintiff's
complaints were intended to support her race/national origin discrimination claim. See Dkt. No.
72-3 at ¶¶ 4-5. Accordingly, the Courts treats the timing of Plaintiff's January 4, 2013 informal
complaint to Abadia, coupled with Plaintiff's October 24, 2012 federal complaint in this action, as
sufficient to establish indirect evidence of retaliation.
b. Legitimate, non-discriminatory basis
Since Plaintiff has established a prima facie case, the burden shifts to Defendants to
articulate a legitimate, non-discriminatory basis for their actions. As explained above,
"insubordination and conduct that disrupts the workplace are 'legitimate reasons for firing an
employee,'" Matima, 228 F.3d at 79 (quoting Holt, 95 F.3d at 130), and "[a]n employer does not
violate Title VII when it takes adverse employment action against an employee to preserve a
15

workplace environment that is governed by rules, subject to a chain of command, free of
commotion, and conductive to the work of the enterprise," id. Here, Defendants have provided
ample evidence of Plaintiff's disruptive conduct. For example, the record establishes that Plaintiff
(1) frequently ignored the chain of command when filing complaints, see Dkt. No. 72-11 at ¶ 20;
Dkt. No. 72-21 at ¶¶ 12, 46-47; (2) ignored her supervisors' instructions and refused to perform
certain tasks or comply with routine policies on several occasions, see Dkt. No. 72-11 at ¶¶ 17-18,
23, 26, 30, 31; Dkt. No. 72-60 at ¶ 17; and (3) fomented tension within the workplace, see Dkt.
No. 72-6 at ¶¶ 69, 73; Dkt. No. 72-32 at ¶ 19; Dkt. No. 84-16 at ¶¶ 3, 5. The record also contains
evidence, some of which predates Plaintiff's termination by several years, documenting concerns
over attendance and time. See Dkt. No. 72-11 at ¶ 43; Dkt. No. 72-18; 72-21 at ¶ 50; Dkt. No. 7260 at ¶ 24; Dkt. No. 76-39.
The foregoing does not establish that DEC and its employees are without fault. Rather,
the Court merely finds that DEC has satisfied its burden of establishing a legitimate, nondiscriminatory reason for Plaintiff's termination. See Dawson v. Hudson Valley, No.
11–CV–8030, 2015 WL 2330298, *4 (S.D.N.Y. Apr. 14, 2015) (finding a plaintiff's
insubordination and tardiness to be "legitimate, non-discriminatory reasons for [the] plaintiff's
termination"); Farzan v. Wells Fargo Bank, N.A., No. 12–CV–1217, 2013 WL 6231615, *20
(S.D.N.Y. Dec. 2, 2013), aff'd sub nom. Farzan v. Genesis 10, 619 Fed. Appx. 15 (2d Cir. 2015)
(finding the plaintiff's "refusal to recognize that he was subject to policies like the assignment
length cap" constituted a "facially legitimate reason[] for his termination"); Dimino v. HSBC
Bank, USA N.A., No. 11–CV–4189, 2012 WL 1202035, *5 (S.D.N.Y. Apr. 11, 2012) (finding that
an employer satisfied its burden where the plaintiff's "'on-going legal action in [his] branch [was]
reaching the point where [his] co-workers [were] finding [his] behavior disruptive'").
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c. Pretext
Since Defendants have articulated legitimate, non-discriminatory bases for their actions,
the burden shifts back to Plaintiff to establish that the reasons proffered by Defendant are
pretextual. First, Plaintiff argues that Defendants' claim of insubordination is specious because "it
ignores the unpunished insubordination of her co-workers." See Dkt. No. 81-1 at 29. However,
as explained above, Plaintiff was not similarly situated to her co-workers because the number of
complaints she submitted dwarves that of her co-workers. See Dkt. No. 72-3 at ¶ 8.
Second, Plaintiff argues that the temporal proximity between Plaintiff's renewed formal
complaints in 2012-2013 and her termination establish that Plaintiff's justification is pretextual
and that insubordination must not have been a serious problem because Defendants did not fire
Plaintiff earlier. See Dkt. No. 81-1 at 30. However, while "[t]he temporal proximity of events
may give rise to an inference of retaliation for the purposes of establishing a prima facie case of
retaliation under Title VII, . . . such temporal proximity is insufficient to satisfy [a plaintiff's]
burden to bring forward some evidence of pretext." El Sayed v. Hilton Hotels Corp., 627 F.3d
931, 933 (2d Cir. 2010). Moreover, the record establishes that Defendants were actually
concerned about insubordination years before they terminated Plaintiff. See Ya-Chen Chen v.
City Univ. of New York, 805 F.3d 59, 71-72 (2d Cir. 2015) ("Even if Calichman, Murphy, and
Lesen reacted ill-advisedly to Chen's conduct somehow . . . they arrived at their opinions that
Chen had behaved improperly long before Chen filed her Affirmative Action Complaint. Thus, no
reasonable jury could conclude that their views of the situation were motivated by retaliatory
animus arising from Chen's Affirmative Action Complaint").
For the foregoing reasons, Defendants' motion for summary judgment on Plaintiff's Title
VII retaliation claim is granted.
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B.

Section 1983 Equal Protection Claim
Plaintiff also raises an equal protection claim against Defendant Tupaj. An equal

protection violation requires a plaintiff to allege that "(1) the [plaintiff], compared with others
similarly situated, was selectively treated; and (2) that such selective treatment was based on
impermissible considerations . . . ." Diesel v. Town of Lewisboro, 232 F.3d 92, 103 (2d Cir.
2000) (citations omitted). To establish an inference of discriminatory motive, the plaintiff must
sufficiently plead "that other similarly situated individuals—who are outside of the protected
class to which the plaintiff belongs—have been treated differently." Faccio v. Landry, No.
10–CV–785, 2012 WL 3637412, *3 (N.D.N.Y. Aug. 22, 2012); see also Village of Willobrook v.
Olech, 528 U.S. 562, 563 (2000) (recognizing equal protection claims where there is no rational
basis for the difference in treatment between similarly situated individuals). "[T]he analysis for
such claims is similar to that used for employment discrimination claims brought under Title VII,
the difference being that a § 1983 claim, unlike a Title VII claim, can be brought against
individuals." Demoret v. Zegarelli, 451 F.3d 140, 149 (2d Cir. 2006). Accordingly, the Court
grants Defendant Tupaj's motion for summary judgment on Plaintiff's equal protection claim for
substantially the same reasons it grants summary judgment on her Title VII claims in favor of
DEC. See Mills v. S. Connecticut State Univ., 519 Fed. Appx. 73, 77 (2d Cir. 2013) ("Because
the analysis for § 1983 claims based on equal protection 'is similar to that used for employment
discrimination claims brought under Title VII,' . . . Mills's equal protection claim fails for
substantially the same reason as her Title VII claim" (quoting Demoret, 451 F.3d at 149)).

C.

HRL Claims
"District courts may decline to exercise supplemental jurisdiction over a claim if the
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district court has dismissed all claims over which it has original jurisdiction." 28 U.S.C. §
1367(c)(3). "[I]n the usual case in which all federal-law claims are eliminated before trial, the
balance of factors to be considered under the pendent jurisdiction doctrine—judicial economy,
convenience, fairness, and comity—will point toward declining to exercise jurisdiction over the
remaining state-law claims." Pension Ben. Guar. Corp. v. Morgan Stanley Inv. Mgmt. Inc., 712
F.3d 705, 727 (2d Cir. 2013) (citations and internal quotation marks omitted). In the present
matter, Plaintiff brings aiding and abetting claims under HRL against Defendant Tupaj. Having
dismissed Plaintiff's federal claims, the Court declines to exercise supplemental jurisdiction to
address Plaintiff's claims under HRL. See Bowen-Hooks, 13 F. Supp. 3d at 240.
IV. CONCLUSION

After carefully considering the entire 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 is GRANTED; and the Court
further
ORDERS that the Clerk of the Court shall enter judgment in Defendants' favor and close
this case; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on all parties in accordance with Local Rules.
IT IS SO ORDERED.
Dated: March 30, 2017
Albany, New York

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