Marsh-Godreau v. SUNY College at Potsdam

Filing 57

MEMORANDUM-DECISION AND ORDER granting 49 Motion for Summary Judgment: It is hereby ORDERED, that Defendants Motion for summary judgment (Dkt. No. 49) is GRANTED, and the case is DISMISSED; and it is further ORDERED, that the Clerk of the Court is directed to close this case; and it is further ORDERED, that the Clerk of the Court serve a copy of this Memorandum-Decision and Order on all parties in accordance with the Local Rules. Signed by Senior Judge Lawrence E. Kahn on 11/28/2017. (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
BONNIE MARSH-GODREAU,
Plaintiff,
-against-

8:15-CV-437 (LEK/CFH)

STATE UNIVERSITY OF NEW YORK
COLLEGE AT POTSDAM, et al.,
Defendants.

MEMORANDUM-DECISION AND ORDER
I.

INTRODUCTION
On April 13, 2015, plaintiff Bonnie Marsh-Godreau commenced this action against

defendant State University of New York College at Potsdam (“SUNY”), alleging that SUNY and
defendant Karen Ham discriminated against her on the basis of her disability. Dkt. No. 1
(“Complaint”). Plaintiff’s second amended complaint asserts discrimination and retaliation
claims against SUNY under the Rehabilitation Act, 29 U.S.C. §§ 701 et seq., and against
defendant Karen Ham under the New York Human Rights Law (“HRL”), N.Y. Exec. Law §§
290 et seq., and the Family Medical Leave Act (“FMLA”), 29 U.S.C. § 2601. Dkt. No. 23
(“Second Amended Complaint”). Defendants moved for summary judgment on each of
Plaintiff’s claims. Dkt. Nos. 49 (“Motion”), 49-1 (“Memorandum”). For the reasons that follow,
Defendants’ Motion is granted.
II.

BACKGROUND
A. Factual History
Plaintiff has worked at SUNY’s Career Planning Department since 1980 and, during the

relevant time period, she held the “Keyboard Specialist II” position. Dkt. No. 56-1

(“Statement of Material Facts”) ¶¶ 11–12. This position has numerous responsibilities, including
performing secretarial services, data entry, compiling data for SUNY’s “Annual Report,” writing
emails and drafting flyers for students and faculty regarding “upcoming events,” assisting in
hiring and performing reference checks for student employees, maintaining “all office systems,”
“[m]aintain[ing] and updat[ing] a lending library system for career and how to books,” and
providing feedback on office systems and procedures. Dkt. No. 56-2 at 3–8 (“2011 Evaluation”)
at 5.1
Plaintiff was diagnosed with depression in 2001, fibromyalgia in 2009, and bipolar II
disorder in January 2011. Dkt. No. 56-5 (“Marsh-Godreau Declaration”) ¶¶ 4–6. On June 14,
2011, Plaintiff went on sick leave as a result of her disability. Id. ¶ 7. As mentioned above,
Plaintiff was typically responsible for compiling data for SUNY’s Annual Report. Plaintiff had
already entered some data for that year’s Report before going on leave. SMF ¶ 19. After she
went on leave, another employee, Margaret Bain, agreed to finish the report. Id. ¶ 18. Bain
entered the data and completed the Annual Report using new software, which increased the
efficiency of data entry and compiled the data in a “user-friendly format.” Id. ¶ 22.
Plaintiff returned to work at SUNY on December 22, 2011. Marsh-Godreau Decl. ¶ 15.
After returning to work, Ham, then Plaintiff’s supervisor, asked whether Plaintiff’s doctor
“changed her medicine” and stated that “she thought that [Plaintiff] should have taken medical
leave much sooner.” Id. ¶ 16. On January 11, 2012, Plaintiff received a performance evaluation
from Ham that rated her job performance as “satisfactory.” 2011 Evaluation at 4. In the

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The cited page numbers for this document refer to those generated by the Court’s
electronic filing system (“ECF”).
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evaluation, Ham wrote that Plaintiff’s “attendance this year had a negative effect on[] office
productivity,” and, “[b]ecause [Plaintiff] was on medical leave[,] other staff completed major
parts of her performance program.” Id. at 8. Shortly after receiving her evaluation, Plaintiff
complained to Ham that she “felt [she] was being treated unfairly because of all the disability
comments included in” the evaluation. Marsh-Godreau Decl. ¶ 22. Ham responded by stating
that she did not think Plaintiff was “with it” before going on medical leave and that Plaintiff
“should have gone out on medical leave sooner.” Id. ¶ 23.
Shortly after Plaintiff returned to SUNY in December 2011, Ham initiated weekly
meetings with Plaintiff, where they would review Plaintiff’s tasks for that week. Dkt. No. 56-3
(“Ham Transcript”) at 185–86. When Plaintiff had difficulty completing a task, she and Ham
“would . . . talk about how [they] could work together to” complete those tasks. Id. These weekly
meetings continued until Ham retired in 2015. Id. at 188.
On March 1, 2012, Plaintiff discovered a memo titled “Physical and Behavioral
Observation of Bonnie Marsh-Godreau” in her personnel file. Marsh-Godreau Decl. ¶¶ 24–26;
Dkt. No. 56-2 at 62 (“Plaintiff’s Exhibit C”).2 The memo was written by SUNY’s Career
Planning Department on July 20, 2011, and stated that Plaintiff had, “in recent months,”
exhibited “physical signs” like “vacant star[ing] and crying,” that she had difficulty
“complet[ing] routine tasks that she has done for years,” and that the Career Planning staff “hope
that [Plaintiff] can get the medical help she needs . . . so that she can return to the office as a
productive staff member.” Id. On March 6, 2012, Plaintiff complained to Mary Dolan, a SUNY
Human Resources Department employee, SAC ¶ 29, stating that she “believe[d she] ha[d] been

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The cited page numbers for this document refer to those generated by ECF.
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subject to discrimination on the basis of [her] actual/perceived disability,” Marsh-Godreau Decl.
¶ 27.
Plaintiff states that, on July 1, 2012, her “duties and responsibilities in data entry
reporting . . . were significantly diminished,” and that her “duties and responsibilities in
supervising student workers were completely removed.” Id. ¶¶ 28–29. In her deposition, she
states that she still performs data entry reporting, still compiles data for the Annual Report, and
“still do[es] all the things . . . that [she] did before.” Dkt. No. 49-3 (“Marsh-Godreau Transcript”)
at 96–97. Plaintiff has received annual salary increases since returning from medical leave in
December 2011. SMF ¶ 32.
B. Procedural History
On April 13, 2015, Plaintiff filed her original Complaint. Compl. She filed an amended
complaint on June 23, 2015. Dkt. No. 10 (“Amended Complaint”). Defendants filed a motion for
judgment on the pleadings on July 29, 2015, alleging that many of Plaintiff’s causes of action
were time-barred. Dkt. No 15-1. Plaintiff then filed a motion for leave to file her Second
Amended Complaint. Dkt. No. 19-2. In a March 11, 2016 Order, this Court gave Plaintiff leave
to amend her complaint, denied the motion for judgment on the pleadings as moot, and deemed
the Second Amended Complaint the operative pleading. Dkt. No. 21.
Plaintiff’s Second Amended Complaint alleges discrimination and retaliation claims
against SUNY under § 504 of the Rehabilitation Act, and against defendant Karen Ham under
the HRL and FMLA. SAC ¶¶ 71–135. Defendants moved for summary judgment on each cause
of action, Mot.; Mem., and Plaintiff opposed the Motion, Dkt. No. 56 (“Opposition”).
Defendants did not file a reply brief. Docket.

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III.

LEGAL STANDARD
A court must grant summary judgment if “there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56. “[A] party
seeking summary judgment always bears the initial responsibility of informing the district court
of the basis for its motion, and identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). The nonmoving party must then “make a showing sufficient to establish
the existence of an element essential to that party’s case, and on which that party will bear the
burden of proof at trial.” Id.
The nonmoving party “must do more than simply show that there is some metaphysical
doubt as to the material facts.” Matsushita Elec. Indus. Co, Ltd. v. Zenith Radio Corp., 475 U.S.
574, 586 (1986). A court at the summary judgment stage “must draw all reasonable inferences in
favor of the nonmoving party, and it may not make credibility determinations or weigh the
evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); see United
States ex rel. O’Donnell v. Countrywide Home Loans, Inc., 822 F.3d 650, 653 n.3 (2d Cir.
2016).
Finally, a “court must be cautious about granting summary judgment to an employer” in
discrimination cases because it is often the case that the employer’s “intent is at issue.” Gallo v.
Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1224 (2d Cir. 1994); accord Bader v.
Special Metals Corp., 985 F. Supp. 2d 291, 305 (N.D.N.Y. 2013) (Kahn, J.). Nevertheless,
“summary judgment remains available for the dismissal of discrimination claims in cases lacking
genuine issues of material fact.” Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 608 (2d Cir.

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2006) (quoting McLee v. Chrysler Corp., 109 F.3d 130, 135 (2d Cir. 1997)). See Abdu-Brisson
v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001) (“It is now beyond cavil that summary
judgment may be appropriate even in the fact-intensive context of discrimination cases.”).
IV.

DISCUSSION
A. Claims against SUNY
1. Rehabilitation Act Discrimination
The Rehabilitation Act prohibits certain employers from discriminating against

employees on the basis of their disability. § 794(a). “Although its terms are broadly drawn, the
Rehabilitation Act incorporates the standards of the Americans with Disabilities Act
[(“ADA”)].” Kelly v. New York State Office of Mental Health, 200 F. Supp. 3d 378, 390
(E.D.N.Y. 2016) (alteration in original) (quoting Cheung v. Donahoe, No. 11-CV-122, 2016 WL
3640683, at *5 (E.D.N.Y. June 29, 2016); see also Rodriguez v. City of New York, 197 F.3d
611, 618 (2d Cir. 1999) (“Because Section 504 of the Rehabilitation Act and the ADA impose
identical requirements, we consider these claims in tandem.”).
“Claims alleging discrimination under the ADA [and the Rehabilitation Act] are subject
to the burden-shifting analysis established” by the Supreme Court in McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973). Davis v. New York City Dep’t of Educ., 804 F.3d 231, 235 (2d
Cir. 2015). Under this framework, the plaintiff must first present a prima facie case that
“produces minimal evidentiary support for the claim of discriminatory motivation.” Id. If the
plaintiff establishes a prima facie case, the burden shifts to the defendant “to articulate a nondiscriminatory reason for the adverse employment action.” Id. Then, the plaintiff must present
some evidence indicating that the defendant’s purported reason is mere pretext for

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discrimination. Id. To establish a prima facie case of discrimination under the Rehabilitation Act,
a plaintiff must present evidence showing that:
(1) the employer is subject to the [Rehabilitation Act]; (2) the
plaintiff is disabled within the meaning of the [Rehabilitation Act] or
perceived to be so by her employer; (3) she was otherwise qualified
to perform the essential functions of her job with or without
reasonable accommodation; (4) she suffered an adverse employment
action; and (5) the adverse action was imposed because of her
disability.
Id. (citing Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 134 (2d Cir. 2008)).
Plaintiff alleges that SUNY carried out adverse employment actions by (1) requiring her
to attend weekly meetings with Ham after returning from medical leave; (2) removing her data
entry and student employee supervision responsibilities; and (3) placing a memo detailing
Plaintiff’s behavior in her personnel file. Opp’n at 5. Plaintiff cites as evidence of discriminatory
animus comments made in the 2011 Evaluation, certain statements made by Ham to Plaintiff, the
fact that only Plaintiff was required to attend weekly meetings with Ham, and the fact that the
memo in her personnel file commented on her disability. Id. at 6; Marsh-Godreau Decl.
¶¶ 18–23. Defendants argue that Plaintiff fails to present evidence establishing that SUNY
carried out an adverse employment action or that any employment action was motivated by
discrimination against Plaintiff’s disability. Mem. at 6–7, 10.
Without assessing the other elements of Plaintiff’s prima facie case, the Court finds that
Plaintiff’s discrimination claim fails because she does not present evidence showing that she
suffered an adverse employment action. “A plaintiff sustains an adverse employment action if he
or she endures a ‘materially adverse change’ in the terms and conditions of employment.”
Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000) (citing Richardson v.

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New York State Dep’t of Corr. Serv., 180 F.3d 426, 446 (2d Cir. 1999)). A materially adverse
change is “more disruptive than a mere inconvenience or an alteration of job responsibilities.”
Littlejohn v. City of New York, 795 F.3d 297, 312 n.10 (2d Cir. 2015) (quoting Galabya, 202
F.3d at 640). “Examples of materially significant disadvantages include termination, demotion,
‘a less distinguished title, a material loss of benefits, [or] significantly diminished material
responsibilities.’” Id. (alteration in original) (quoting Galabya, 202 F.3d at 640).
a. Behavior Memo
On July 20, 2011, SUNY’s Career Planning Department prepared a memo describing
observations of Plaintiff’s behavior before she went on sick leave. Pl.’s Ex. C. It stated that
Plaintiff had, “in recent months,” exhibited “physical signs” like “vacant star[ing] and crying,”
and that she had difficulty “complet[ing] routine tasks that she has done for years.” Id. The
memo was placed in Plaintiff’s personnel file. Marsh-Godreau Decl. ¶ 24.
Plaintiff does not explain why the existence of this memo or its placement in her
personnel file is an adverse employment action. The memo did not result in her termination;
Plaintiff still works at SUNY. SMF ¶ 29. Also, Plaintiff has received annual pay raises since
returning from medical leave, id. ¶ 32, and so could not argue that the memo resulted in a loss of
wages. Although the memo may be a negative assessment of Plaintiff’s performance at SUNY,
negative performance evaluations are not adverse employment actions absent evidence that the
evaluation had some “deleterious effect on conditions of . . . employment.” Worrell v. New York
City Dep’t of Educ., 140 F. Supp. 3d 231, 239 (E.D.N.Y. 2015); see also Siddiqi v. New York
City Health & Hosps. Corp., 572 F. Supp. 2d 353, 367 (S.D.N.Y. 2008) (holding that “negative
evaluations, standing alone without any accompanying adverse results, are not cognizable” as

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adverse employment actions (quoting Bennett v. Watson Wyatt & Co., 136 F. Supp. 2d 236, 247
(S.D.N.Y. 2001))). Therefore, the existence of the memo in Plaintiff’s personnel file is not an
adverse employment action.
b. Supervisor Meetings
After Plaintiff returned from medical leave, Ham initiated meetings with Plaintiff, where
they would review Plaintiff’s weekly tasks and “talk about how [they] could work together to”
help Plaintiff complete those tasks.” Ham Tr. at 185–86. Plaintiff’s assertion that her attendance
of these meetings was an adverse employment action, Opp’n at 5, is unsubstantiated. She does
not allege that the meetings impacted her work experience in any way. Even if Plaintiff considers
the extra supervision provided in these meetings to be unwarranted or excessive, “reprimands,
threats of disciplinary action and excessive scrutiny do not constitute adverse employment
actions.” Bennett, 136 F. Supp. 2d at 248; see Meder v. City of New York, No. 05-CV-919, 2007
WL 1231626, at *4 (E.D.N.Y. 2007) (holding that “subject[ing plaintiff] to more monitoring
than . . . other teachers . . . is not sufficiently material a change to her conditions of employment”
to constitute an adverse employment action); Valenti v. Massapequa Union Free Sch. Dist.,
Nos. 03-CV-1193, 04-CV-5271, 2006 WL 2570871, at *11 (E.D.N.Y. Sept. 5, 2006) (internal
quotation marks omitted) (“Although close monitoring may cause an employee embarrassment
or anxiety, such intangible consequences are not materially adverse alterations of employment
conditions.”). Therefore, Plaintiff’s attendance at weekly meetings with Ham was not an adverse
employment action.

c. Removal of Data Entry Responsibilities

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Plaintiff alleges that compiling data for SUNY’s Annual Report “has always been an
essential function of her position as a Keyboard Specialist II,” but that SUNY no longer let
Plaintiff perform this task after she returned from medical leave. SAC ¶ 55. However, in her
deposition, Plaintiff conceded that she “still entered the information” for the Annual Report
when she returned from medical leave, that “data report entry is still a function of [her] job,” and
that she “still do[es] all the things . . . that [she] did before.” Marsh-Godreau Tr. at 96–97. No
evidence in the record supports the conclusion that any of Plaintiff’s data entry duties were
diminished or removed.
Plaintiff’s Declaration asserts that “[o]n July 1, 2012, [her] duties and responsibilities in
data entry reporting . . . were significantly diminished.” Marsh-Godreau Decl. ¶ 28. First, this
conclusory testimony is insufficient to create a genuine issue of material fact. See Scotto v.
Almenas, 143 F.3d 105, 114 (2d Cir. 1998) (observing that a party opposing summary judgment
“may not rely on conclusory allegations or unsubstantiated speculation”); Nadel v. Shinseki, 57
F. Supp. 3d 288, 293 n.6 (S.D.N.Y. 2014) (refusing to “credit the legal conclusions or
conclusory allegations contained in . . . [p]laintiff’s declaration”).
Second, “a plaintiff cannot submit a declaration to defeat summary judgment that
contradicts the declarant’s prior deposition testimony” unless the “later sworn assertion
addresses an issue that . . . was not thoroughly or clearly[] explored in the deposition.” In re
Fosamax Prods. Liab. Litig., 647 F. Supp. 2d 265, 281 (S.D.N.Y. 2009). Plaintiff explicitly relies
on the declaration testimony quoted above to create a factual dispute regarding whether she
continues to compile data for the Annual Report. Dkt. No. 56-1 (“Response Statement of
Material Facts”) ¶ 29. Moreover, during Plaintiff’s deposition, after she revealed that she still

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performed data entry for the Report, SUNY’s counsel asked her to clarify her response twice
before moving to a different subject. Marsh-Godreau Tr. at 96–97. Therefore, Plaintiff’s
declaration testimony does not raise a factual question because it directly contradicts her earlier
deposition testimony, which was sufficiently explored.
Finally, even if the Court were to accept that Plaintiff’s data entry responsibilities were
diminished or removed, “[c]hanges in assignments or responsibilities that do not ‘radical[ly]
change’ the nature of work are not typically adverse employment actions.” Potash v. Florida
Union Free Sch. Dist., 972 F. Supp. 2d 557, 584 (S.D.N.Y. 2013) (second alteration in original)
(citing Galabya, 202 F.3d at 640). Plaintiff has a litany of job responsibilities other than data
entry. E.g., SMF ¶ 13 (listing thirteen tasks for which Plaintiff is responsible); Marsh-Godreau
Decl. ¶ 2 (listing eight tasks for which Plaintiff is responsible). It is not apparent from the record
that removal of data entry duties would significantly impact Plaintiff’s work responsibilities.
Plaintiff’s assertion that her data entry duties “have always been an essential function of [her]
position as a Keyboard Specialist II,” Marsh-Godreau Decl. ¶ 29, is unsupported by any
evidence and does not provide the “objective indicia of material disadvantage” required to
establish the adverse employment prong of a prima facie discrimination case. Potash, 972 F.
Supp. 2d at 584.
In sum, the available evidence does not permit the conclusion that Plaintiff’s data entry
duties were diminished or removed or that removal of data entry duties would constitute an
adverse employment action.
d. Removal of Student Employee Supervision Duties
Plaintiff alleges that, before she went on medical leave, she was in charge of “supervising

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student workers” and that this duty was removed after July 1, 2012. Marsh-Godreau Decl. ¶ 29.
Plaintiff does not allege that this significantly altered her responsibilities as a Keyboard
Specialist II, or explain what her “duties and responsibilities” were with respect to student
worker supervision. This undeveloped assertion cannot be treated as an adverse employment
action. Therefore, Plaintiff fails to establish the adverse employment prong of her prima facie
case, and the Court grants Defendants’ Motion for summary judgment with respect to the
Rehabilitation Act discrimination claim against SUNY.
2. Rehabilitation Act Retaliation
“Retaliation against individuals asserting rights under the Rehabilitation Act is
prohibited.” Lupe v. Shinseki, No. 10-CV-198, 2012 WL 3685954, at *19 (N.D.N.Y. Aug. 24,
2012). Retaliation claims under the Rehabilitation Act are analyzed using the burden-shifting
framework established in McDonnell Douglas. Id. To establish a prima facie case of retaliation,
a plaintiff must “show (1) that she engaged in protected activity, (2) that the defendant was
aware of this activity, (3) that the defendant took adverse action against the plaintiff, and (4) that
there is a causal connection between the protected activity and the adverse action.” Id.; accord
Monsour v. New York State Office for People with Developmental Disabilities, No. 13-CV-336,
2017 WL 3972044, at *10 (N.D.N.Y. July 7, 2017). The defendant must then present a
legitimate, non-retaliatory justification for the adverse action, and the plaintiff must provide
evidence indicating that the provided justification is a pretext for retaliation. Lupe, 2012 WL
3685954, at *19.
Plaintiff alleges that she engaged in protected activity when she told Ham that she felt
that the 2011 Evaluation targeted her disability, and again on March 6, 2012, when she

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discovered the behavior memo in her personnel file and told SUNY’s Human Resources
Department that the memo constituted discrimination against her on the basis of her disability.
Marsh-Godreau Decl. ¶¶ 22–27; Opp’n at 10. Plaintiff alleges that Defendants retaliated against
her for these complaints on July 1, 2012, when they allegedly removed her data entry and student
supervision duties. Opp’n at 10. Defendants do not dispute that Plaintiff carried out protected
activity or that SUNY knew of her protected activity. Mem. at 11. Rather, they argue that
Plaintiff has not established causation or an adverse employment action. Id. at 11–12.
The Court need not analyze the other elements of Plaintiff’s prima facie case of
retaliation because she does not establish the presence of an adverse employment action. The
Supreme Court held in Burlington Northern and Santa Fe Railway Co. v. White that an adverse
employment action in the retaliation context is an action that “could well dissuade a reasonable
worker from making or supporting a charge of discrimination.” 548 U.S. 53, 57 (2006). The
action must be one “that would have been materially adverse to a reasonable employee.” Id. This
standard does not protect individuals from “normally petty slights, minor annoyances, and
simple lack of good manners,” but only “from retaliation that produces an injury or harm.” Id. To
be “materially adverse, a change in working conditions must be ‘more disruptive than a mere
inconvenience or an alteration of job responsibilities.’” Kelly, 200 F.Supp. at 396 (quoting Vale
v. Great Neck Water Pollution Control Dist., 80 F. Supp. 3d 426, 434 (E.D.N.Y. 2015)).
As explained above, Plaintiff has produced insufficient evidence to permit the conclusion
that her data entry duties were diminished or removed. Moreover, she provides no evidence to
suggest that removal of either data entry duties or student work supervision “produce[d] an
injury or harm.” Burlington N., 548 U.S. at 57. Plaintiff’s minimal assertions regarding her loss

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of duties are insufficient to establish the adverse employment action prong of her prima facie
case. See Byrne v. Telesector Res. Grp., Inc., 339 F. App’x 13, 17 (2d Cir. 2009) (affirming
dismissal of retaliation claim where plaintiff did not provide evidence establishing that alteration
of her work responsibilities “harmed [her] career advancement”); Caban v. Richline Grp., Inc.,
No. 10-CV-559, 2012 WL 2861377, at *13 (S.D.N.Y. July 10, 2012) (holding that, “although
[plaintiff] has shown that [her supervisor] gave her less work to do, without more, this does not
rise to the level of” an adverse employment action). Because Plaintiff provides insufficient
evidence to establish the existence of an adverse employment action, she cannot establish a
retaliation claim, and the Court grants Defendants’ Motion for summary judgment with respect
to the retaliation claim against SUNY.
B. Claims against Ham
1. FMLA Retaliation Claim
Plaintiff’s FMLA retaliation claim against Ham is premised on the same facts as her
retaliation claim against SUNY. SAC ¶¶ 123–35; Opp’n at 11. The FMLA provides that “[i]t
shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the
attempt to exercise, any right provided under this subchapter.” § 2615(a)(1). FMLA retaliation
claims are analyzed under the McDonnell Douglas burden-shifting framework. Graziadio v.
Culinary Inst. of Am., 817 F.3d 415, 429 (2d Cir. 2016) (citing McDonnell Douglas, 411 U.S.).
A plaintiff establishes a prima facie case of retaliation under the FMLA if he provides evidence
showing “that 1) he exercised rights protected under the FMLA; 2) he was qualified for his
position; 3) he suffered an adverse employment action; and 4) the adverse employment action
occurred under circumstances giving rise to an inference of retaliatory intent.” Id.

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The Court dismissed the Rehabilitation Act retaliation claim against SUNY because
Plaintiff has not established that any of SUNY’s alleged actions were materially adverse.
Because Plaintiff’s retaliation claim against Ham is premised on the same facts as the dismissed
retaliation claim against SUNY, the Court finds that Plaintiff cannot establish the existence of an
adverse employment action under the FMLA. Accordingly, Defendants’ Motion for summary
judgment is granted with respect to the FMLA retaliation claim against Ham.
2. HRL Discrimination and Retaliation Claims
Plaintiff’s HRL discrimination and retaliation claims against Ham are premised on the
same facts as her discrimination and retaliation claims against SUNY. SAC ¶¶ 99–122; Opp’n
at 12. New York HRL discrimination and retaliation claims are subject to the same burdenshifting framework and substantive requirements as their Rehabilitation Act counterparts. See
Camarillo v. Carrols Corp., 518 F.3d 153, 158 (2d Cir. 2008) (“[T]he scope of the disability
discrimination provisions of [HRL] are similar to those of . . . § 504 of the Rehabilitation Act.”);
Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002) (“The Rehabilitation Act and
NYHRL contain similar provisions against retaliation and are governed in this respect by the
same standards as the ADA.”); Murphy v. Bd. of Educ. of Rochester City Sch. Dist., 273 F.
Supp. 2d 292, 321 (W.D.N.Y. 2003) (“The standards for retaliation claims under [Title VII, the
ADA, the Rehabilitation Act, and HRL] are the same.”). Because the Court dismissed Plaintiff’s
Rehabilitation Act retaliation and discrimination claims against SUNY and because Plaintiff’s
HRL claims against Ham are premised on the same facts, the Court grants Defendants’ Motion
for summary judgment with respect to these claims.

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V.

CONCLUSION
Accordingly, it is hereby:
ORDERED, that Defendants’ Motion for summary judgment (Dkt. No. 49) is

GRANTED, and the case is DISMISSED; and it is further
ORDERED, that the Clerk of the Court is directed to close this case; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Memorandum-Decision and
Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.

DATED:

November 28, 2017
Albany, New York

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