Jacob v. AHRC New York City Chapter

Filing 34

OPINION AND ORDER re: 26 MOTION for Summary Judgment filed by AHRC New York City Chapter: For the foregoing reasons, Defendant's motion for summary judgment is GRANTED in its entirety. The Clerk of Court is directed to terminate all p ending motions, adjourn all remaining dates, and close this case. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this order would not be taken in good faith; therefore, in forma pauperis status is denied for purposes of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). (Signed by Judge Katherine Polk Failla on 12/1/2014) (tn)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------------------X
:
IISHA T. JACOB,
:
:
:
Plaintiff,
:
:
v.
:
NYSARC, INC., NEW YORK CITY
:
:
CHAPTER,
:
Defendant. :
----------------------------------------------------- X
KATHERINE POLK FAILLA, District Judge:

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: December 1, 2014
______________

13 Civ. 1677 (KPF)
OPINION AND ORDER

On March 11, 2013, Plaintiff Iisha T. Jacob (“Jacob” or “Plaintiff”),
proceeding pro se and in forma pauperis, filed this action under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (“Title VII”), and,
construing Plaintiff’s pro se claims liberally, under New York Labor Law Section
215, against NYSARC, Inc., New York City Chapter (“AHRC NYC” or
“Defendant”). 1 Construing her claims in the strongest manner possible,
Plaintiff alleges employment discrimination and retaliation based on her
national origin, which is American. Defendant responds that any actions it
took against Plaintiff during her tenure with it were warranted by her conduct,
and were the product of neither discriminatory nor retaliatory motive.
Defendant has moved for summary judgment on all of Plaintiff’s claims. For

1

The named Defendant in this case, “AHRC New York City,” is more properly known as
the New York City Chapter of NYSARC, Inc. (See Dkt. #9-12). The Clerk of Court is
directed to amend the official caption as set forth above.

the reasons set forth in the remainder of this Opinion, Defendant’s motion is
granted in its entirety.
BACKGROUND 2
A.

Factual Background
1.

Plaintiff’s Employment with AHRC NYC

On or about December 21, 2011, Plaintiff began her employment with
Defendant AHRC NYC. (Def. 56.1 ¶ 6). Defendant is a not-for-profit human

2

The facts set forth herein are drawn from Defendant’s Statement of Undisputed Facts
Pursuant to Local Civil Rule 56.1 (“Def. 56.1”); the Affidavit of Tracy-Ann Adams
(“Adams Aff.”); Plaintiff’s Amended Complaint (Dkt. #4; “Am. Compl.”); and the
deposition of Plaintiff (“Jacob Dep.”). Citations to Defendant’s Rule 56.1 Statement
incorporate by reference the documents cited therein. For convenience, the parties’
memoranda of law will be referred to as follows: Defendant’s Memorandum of Law in
Support of Defendant’s Motion for Summary Judgment as “Def. Br.”; Plaintiff’s
Affirmation in Opposition as “Pl. Opp.” (citations to this submission are made using the
pagination imposed by the Court’s electronic case filing (“ECF”) system); and
Defendant’s Reply as “Def. Reply.”
Local Rule 56.1 requires a party moving for summary judgment to submit a “separate,
short and concise statement, in numbered paragraphs, of the material facts as to which
the moving party contends there is no genuine issue to be tried.” Local Rule 56.1(a).
The movant’s asserted facts are deemed to be admitted unless specifically controverted
by the statement served by the opposing party. Local Rule 56.1(c). Pro se litigants are
“not excused from meeting the requirements of Local Rule 56.1.” Wali v. One Source
Co., 678 F. Supp. 2d 170, 178 (S.D.N.Y. 2009). However, even where there is
incomplete compliance with the Local Rules, the Court retains discretion “to consider
the substance of the plaintiff’s arguments.” Id. (citing Holtz v. Rockefeller & Co., Inc.,
258 F.3d 62, 73 (2d Cir. 2001) (“[W]hile a court is not required to consider what the
parties fail to point out in their Local Rule 56.1 Statements, it may in its discretion opt
to conduct an assiduous review of the record even where one of the parties has failed to
file such a statement.” (internal quotation marks omitted))); see also Hayes v. County of
Sullivan, 853 F. Supp. 2d 400, 406 n.1 (S.D.N.Y. 2012) (“In light of Plaintiff’s pro se
status, the Court overlooks his failure to file a Local Rule 56.1 Statement and conducts
its own independent review of the record.”).
Defendants filed a Rule 56.1 Statement on March 17, 2014. (Dkt. #27). Plaintiff filed
only an Affirmation in Opposition to Motion in response and filed no Rule 56.1
Statement. (Dkt. #31). Nonetheless, the Court has conducted an independent review of
the record before it in consideration of the substance of Plaintiff’s arguments. Where
appropriate, the Court has relied on the undisputed facts in Defendant’s Rule 56.1
Statement; however, direct citations to the record have also been used where relevant
facts were not included, or where the Court liberally construes Plaintiff’s pro se
submissions or the record evidence to refute a particular fact.

2

service organization that annually serves more than 11,000 individuals with
intellectual and developmental disabilities by providing a wide range of
educational, residential, clinical, medical, and recreational services. (Id. at
¶ 1). Plaintiff was hired as a Direct Support Professional (“DSP”) in Defendant’s
Home Care Department on a per diem basis. (Id. at ¶ 6). Plaintiff’s per diem
status meant she was not a regular, full-time employee, but instead would
receive work assignments based on availability and changing needs of AHRC
NYC-affiliated residences throughout New York City. (Id. at ¶¶ 7-9). 3 Either
Defendant would reach out to Plaintiff to notify her of available shifts, or
Plaintiff could call to inquire about available shifts. (Id. at ¶ 8). As a DSP,
Plaintiff’s responsibilities included assisting the individuals in her assigned
facility with daily living, skills training, socialization, and recreational activities.
(Id. at ¶ 12).
Given the vulnerability of many of the individuals it serves, Defendant
has developed a series of policies and procedures that focus on the well-being
of those individuals. (Def. 56.1 ¶¶ 10-18). These materials are provided to new
hires and set expectations for DSPs like Plaintiff, who are required to “work
with individuals in accordance with their individualized plan of care, in
carrying out professionally developed activities, experiences or therapies in
order to fulfill each individual’s optimal ability.” (Id. at ¶¶ 10, 13). Also
according to these policies and procedures, DSPs must act as advocates for the
3

The Director of Defendant’s Home Care Department confirmed the irregularity of
Plaintiff’s per diem schedule in her December 21, 2011 offer letter, which noted, “Your
schedule may vary from week to week.” (Def. 56.1 ¶ 9; Adams Aff. Ex. B).

3

individuals, must notify Defendant if they suspect the workplace may endanger
the health or safety of an individual, and must not leave before the end of a
work schedule. (Id. at ¶¶ 14, 16-17). Moreover, these materials identify
“[e]ndangering the welfare of the individual by acting in an abusive or
neglectful manner” as grounds for immediate termination. (Id. at ¶ 18).
Plaintiff was provided with these materials upon commencement of her
employment with Defendant. (Id. at ¶ 10).
2.

Plaintiff’s First Disciplinary Incident

During Plaintiff’s 14 months of per diem employment with Defendant,
she was the subject of multiple complaints from AHRC NYC-affiliated
residences about her work performance, including three complaints that led to
disciplinary action. (See Def. 56.1 ¶¶ 19-36). The first time Plaintiff was
subject to disciplinary action arose out of an incident on February 20, 2012,
only a few months into her employ. (Id. at ¶ 20). An affiliated residence, the
Kraus facility, submitted a complaint regarding Plaintiff’s performance during
her assigned overnight shift, as well as a request that she not be reassigned to
the facility. (Id.). Specifically, the facility reported that they could not find
Plaintiff in the residence for a period of time, and that when they did find her,
she was located near the rear exit with the lights out, clutching her coat and
bag. (Id.). The facility also reported that Plaintiff had been assigned to shower
one individual during her shift, but apparently did not do so because a member
of the staff discovered that individual unwashed and soiled with feces. (Id.).

4

Additionally, Plaintiff had failed to follow AHRC NYC procedure, which required
her to complete a form confirming her orientation at that facility. (Id.).
Plaintiff adds some additional context to this incident. She claims that
upon her arrival at the facility — where the regular staff, her coworkers, were of
“different nationalities” — she went to ask the staff if they needed assistance
with anything, such as cleaning duties. (Jacob Dep. 146). One of the three
staff working that night declined her help, and apparently told her to “go
downstairs and rest.” (Id.). Plaintiff says that rather than do that, which she
believed would get her in trouble, she “kept going around checking up on the
individuals, keeping myself busy.” (Id.). Plaintiff does not dispute that she did
not shower the individual she was assigned to shower, that she was found with
her personal belongings near the exit, or that she failed to fill out the requisite
paperwork for the facility. (Id.).
Kent Willingham, who is the Assistant Director of Defendant’s Home Care
Department and is of the same national origin as Plaintiff, met with Plaintiff the
next day to discuss the Kraus facility complaint. (Def. 56.1 ¶¶ 21-22). At that
meeting, Willingham warned Plaintiff that future performance issues could
result in further disciplinary action, including termination. (Id. at ¶ 21).
3.

Plaintiff’s EEOC Complaint

On or about December 13, 2012, Plaintiff filed a Charge of
Discrimination with the U.S. Equal Employment Opportunity Commission (the
“EEOC”). (Def. 56.1 ¶ 47). Defendant received a notice as a result of this
charge indicating that the only alleged discrimination was “retaliation” in
5

violation of Title VII; that the issues involved “assignment, terms/conditions,
wages”; and that the latest act of discrimination occurred on November 12,
2012. (Id. at ¶ 49). Defendant was provided with no other information
concerning the bases for Plaintiff’s claims. 4 On February 1, 2013, Defendant
received a copy of the Dismissal and Notice of Rights form (containing Plaintiff’s
Right to Sue Notice) sent to Plaintiff by the EEOC one week earlier; the form
indicated that, “[b]ased upon its investigation the EEOC is unable to conclude
that the information obtained establishes violations of the statutes.” (Id. at
¶ 52).
4.

Plaintiff’s Second Disciplinary Incident

On January 7, 2013, Plaintiff’s second incident resulting in disciplinary
action occurred at another AHRC NYC-affiliated residence, Bloomberg 3C.
(Def. 56.1 ¶ 23). That day, Plaintiff was 30 minutes late for her assigned shift
and failed to follow Defendant’s lateness protocol (which required her to advise
that she would be late); once at her shift, Plaintiff used the facility’s
speakerphone in an inappropriate manner, and deliberately ignored her
supervisor’s requests regarding her use of the telephone. (Id. at ¶ 24). 5 The
supervisor requested that Plaintiff clock out and leave given her inappropriate

4

In its submissions, Defendant recites its commitment to non-discrimination and equal
opportunity for all employees and qualified applicants, a commitment that is embodied
in policies that are provided to employees. (Def. 56.1 ¶¶ 2-3). These policies contain an
established complaint procedure for reporting discriminatory or harassing conduct, of
which Plaintiff apparently never availed herself. (Id. at ¶¶ 5, 50).

5

Plaintiff makes only a blanket assertion that this incident and her subsequent
discipline “never happened” (Pl. Opp. 7), which is insufficient to create a material fact
issue on summary judgment, see Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010)
(holding conclusory denials insufficient).

6

conduct, and also put in a request that Plaintiff not be reassigned to that
facility. (Id. at ¶ 25). On or about January 16, 2013, Defendant provided
Plaintiff with a second warning as a result of this incident. (Id. at ¶ 23). 6
5.

Plaintiff’s NYDOL Complaint

On or about January 28, 2013, Defendant received notice of a complaint
Plaintiff had filed with the New York Department of Labor (the “NYDOL”). (Def.
56.1 ¶ 54). In that complaint, Plaintiff contended that Defendant failed to pay
her wages for certain hours worked in October and November of 2012. (Id. at
¶¶ 53, 55). Although Defendant believed that it had paid Plaintiff for all
reported hours, because the complained-of time period had seen Defendant’s
business operations interrupted by Hurricane Sandy, the possibility existed
that the disruption had affected the accurate reporting of Plaintiff’s hours to
headquarters. (Id. at ¶ 56). Given this possibility, on February 8, 2013,
Defendant paid Plaintiff $257.73, less required withholdings, which was the
amount claimed in her NYDOL complaint. (Id. at ¶ 57).
6.

Plaintiff’s Third Disciplinary Incident

On February 15, 2013, Plaintiff’s third incident meriting disciplinary
action occurred at the AHRC NYC-affiliated residence named Manhattan IRA.
(Def. 56.1 ¶ 28). That day, Plaintiff clocked out the minute her shift ended at
11:00 p.m., leaving the facility seven minutes before her replacement arrived,
despite being aware that such conduct constituted job abandonment under
AHRC NYC’s policies. (Id. at ¶¶ 29-35). Plaintiff did not verify that the
6

Defendant does not specify who provided this feedback.

7

appropriate number of staff were present at the residence, as she was
supposed to do. (Id. at ¶ 36). On or about February 16, 2013, the manager of
the Manhattan IRA submitted a “Significant Event Report” to Defendant
describing Plaintiff’s misconduct and requesting that Plaintiff not be reassigned
to that facility. (Id. at ¶¶ 28, 37).
Upon receipt of the report, Willingham placed Plaintiff on inactive status
pending investigation of the incident; this meant that Defendant would not
assign Plaintiff to shifts in any other facilities during the investigation. (Def.
56.1 ¶ 38). Once Willingham conducted an investigation and confirmed that
Plaintiff had indeed left before her replacements arrived, Willingham
recommended that Defendant terminate Plaintiff’s employment. (Id. at ¶ 39).
Willingham discussed this recommendation with Tracy-Ann Adams, who is the
Director of both Defendant’s Home Care and Human Resources Departments,
and who is also of the same national origin as Plaintiff. (Id. at ¶¶ 40, 44). They
determined that Plaintiff’s offense was very serious — not only had she
abandoned her job in violation of AHRC NYC’s policies and procedures, but
also, critically, she had left the Manhattan IRA without proper staff coverage,
jeopardizing the safety and welfare of the residents. (Id. at ¶ 41). They agreed
that, given the seriousness of Plaintiff’s offense and her prior disciplinary
history, termination was appropriate. (Id.). Moreover, they noted, this was the
fifth facility that had requested Plaintiff not be reassigned to shifts at that

8

facility. (Id. at ¶ 42). 7 Defendant terminated Plaintiff’s employment effective
March 6, 2013. (Id. at ¶ 43).
7.

Plaintiff’s Lawsuit and Claims of Discrimination and
Retaliation

In her Amended Complaint, Plaintiff alleges that Defendant discriminated
against her because of her national origin of “being born and raised from
America and not from a foreign country,” and that the organization retaliated
against her for filing her EEOC and NYDOL complaints. (Am. Compl. 3).
Plaintiff has identified as the bases of her claims that Defendant: (i) “turn[ed]
[her] down from work when work was available”; (ii) “fail[ed] to inform [her]
about termination, investigation, and job abandonment allegations when [she]
was calling for work”; (iii) terminated her employment; and (iv) used her social
security number “to punch [her] in for days [she] ha[d] not worked.” (Id.).
Because, as discussed in note 2, supra, the Court has conducted an
independent examination of the record before it in consideration of this pro se
plaintiff’s arguments, it turns to Plaintiff’s deposition in search of further
factual support for her claims. In her deposition, when asked to explain the
bases of her claims, she offered the following as examples of discrimination
based on her and her coworkers’ respective national origins:
⋅

7

Plaintiff recalled, “I would hear a lot of Caribbean staff
would say, well, we are Caribbean and we are not

This paragraph in Defendant’s Statement of Undisputed Facts states that Manhattan
IRA was the “fourth” facility that had requested Plaintiff not be reassigned, although it
is clear from the recitation of the facts that it was in fact the fifth. In addition to the
Kraus, Bloomberg 3C, and Manhattan IRA facilities, at least two other facilities had
requested that Plaintiff not be assigned because she did not possess the requisite skills
to support the types of individuals housed at these residences. (Def. 56.1 ¶¶ 26-27).

9

American. That’s what I would hear them say.” (Jacob
Dep. 85).
⋅

Plaintiff said she felt “discriminated [against] at the
residences due to me being American and not of any other
nationality … [because] one of the staff is Jamaican.…
Another staff was Trinidadian.” (Id. at 92). She noted that
at certain residences, as far as she knew, all the other
staff were non-American. (Id. at 93).

⋅

Plaintiff felt discriminated against when non-American
staff members would say things like, ‘“Oh, we don’t listen
to American music, we only listen to Trinidadian music.
I go out to Trinidadian parties, I don’t go to American
parties or listen to American music’” (id. at 92-93), and
that “they only like men of their national origin” (id. at
96).

⋅

Plaintiff disliked “[h]ow [non-American staff members]
would speak to me. Instead of them asking me to do
something, like they would tell me like ‘Go upstairs and
go fix the beds.’ And I would say, ‘Well, you don’t have to
speak to me like that.’” (Id. at 96). She admitted that she
did not know whether they spoke to her this way because
she was American, but related that that was “just how
[she] would feel.” (Id.).

Plaintiff does not provide evidence in support of these incidents other than her
own testimony; Defendant does not refute that these incidents happened. The
Court therefore accepts the facts of these incidents as undisputed.
In addition, to substantiate her claim that she was “punched in” for days
she did not work, Plaintiff testified that on January 9, 2013, Defendant had
assigned her to provide coverage at a hospital for one of its individuals. (Jacob
Dep. 186). Once she arrived, however, that particular individual had been
discharged, so she did not end up working that day. (Id.). Plaintiff contends
that one of the coordinators must have signed her in, and that Defendant used

10

her social security number in order to pay her for that day she did not actually
work. (Id. at 186-87). This, she says, resulted in her having to reimburse one
day of the unemployment benefits that she had claimed. (Id.). Plaintiff claimed
this was discriminatory because she was getting turned away from work, and
her coordinators were different nationalities from her. (Id. at 191). Defendant
does not contest the facts of Plaintiff’s version of this story (although it does
contest that this action was discriminatory); the Court therefore accepts these
facts as undisputed.
B.

Procedural Background
After receiving the EEOC’s Right to Sue Notice, Plaintiff commenced this

lawsuit in federal court on March 11, 2013, and subsequently amended her
complaint on March 19, 2013. (Dkt. #1, 4). Defendant answered on June 21,
2013, and submitted an amended answer on September 24, 2013. (Dkt. #10,
20). Following discovery, Defendant moved for summary judgment on March
17, 2014, and the motion was fully briefed on May 12, 2014. (Dkt. #26-29, 31,
32).
DISCUSSION
A.

Applicable Law
1.

Summary Judgment
a.

Generally

Under Federal Rule of Civil Procedure 56(a), summary judgment may be
granted only if all the submissions taken together “show that there is no
genuine issue as to any material fact and that the moving party is entitled to

11

judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
The moving party bears the initial burden of demonstrating “the absence of a
genuine issue of material fact.” Celotex, 477 U.S. at 323. A fact is “material” if
it “might affect the outcome of the suit under the governing law,” and is
genuinely in dispute “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248; see also
Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005) (citing
Anderson). The movant may discharge this burden by showing that the
nonmoving party has “fail[ed] to 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.” Celotex, 477 U.S. at 322; see also
Selevan v. N.Y. Thruway Auth., 711 F.3d 253, 256 (2d Cir. 2013) (finding
summary judgment appropriate where the non-moving party fails to “come
forth with evidence sufficient to permit a reasonable juror to return a verdict in
his or her favor on an essential element of a claim” (internal quotation marks
omitted)).
If the moving party meets this burden, the nonmoving party must “set
out specific facts showing a genuine issue for trial” using affidavits or
otherwise, and cannot rely on the “mere allegations or denials” contained in the
pleadings. Anderson, 477 U.S. at 248, 250; see also Celotex, 477 U.S. at 32324; Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). The nonmoving party
“must do more than simply show that there is some metaphysical doubt as to
12

the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586 (1986) (citations omitted), and cannot rely on “mere speculation or
conjecture as to the true nature of the facts to overcome a motion for summary
judgment,” Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986) (quoting
Quarles v. Gen. Motors Corp., 758 F.2d 839, 840 (2d Cir. 1985)). Furthermore,
“[m]ere conclusory allegations or denials cannot by themselves create a genuine
issue of material fact where none would otherwise exist.” Hicks v. Baines, 593
F.3d 159, 166 (2d Cir. 2010) (quoting Fletcher v. Atex, Inc., 68 F.3d 1451, 1456
(2d Cir. 1995) (internal quotation marks and citations omitted)); see also
Vargas v. Transeau, 514 F. Supp. 2d 439, 442 (S.D.N.Y. 2007) (observing that
“the mere existence of a scintilla of evidence in support of the [non-movant’s]
position will be insufficient” to defeat summary judgment (internal quotation
marks and citations omitted)), aff’d sub nom. Vargas v. Pfizer, Inc., 352 F. App’x
458 (2d Cir. 2009) (summary order).
“When ruling on a summary judgment motion, the district court must
construe the facts in the light most favorable to the non-moving party and
must resolve all ambiguities and draw all reasonable inferences against the
movant.” Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir.
2003). However, in considering “what may reasonably inferred” from witness
testimony, the court should not accord the non-moving party the benefit of
“unreasonable inferences, or inferences at war with undisputed facts.” Berk v.
St. Vincent’s Hosp. & Med. Ctr., 380 F. Supp. 2d 334, 342 (S.D.N.Y. 2005)

13

(citing County of Suffolk v. Long Island Lighting Co., 907 F.2d 1295, 1318 (2d
Cir. 1990)).
b.

Summary Judgment in Employment Discrimination
Cases

Courts should exercise caution in granting summary judgment in
employment discrimination cases where the employer’s intent is at issue.
Holcomb v. Iona College, 521 F.3d 130, 137 (2d Cir. 2008). However,
‘“summary judgment is appropriate even in discrimination cases, for the
salutary purposes of summary judgment — avoiding protracted, expensive and
harassing trials — apply no less to discrimination cases than to other areas of
litigation.’” Hongyan Lu v. Chase Inv. Serv. Corp., 412 F. App’x 413, 415 (2d
Cir. 2011) (summary order) (quoting Weinstock v. Columbia Univ., 224 F.3d 33,
41 (2d Cir. 2000), superseded by statute on other grounds as stated in Ochei v.
Coler/Goldwater Mem’l Hosp., 450 F. Supp. 2d 275, 282 (S.D.N.Y. 2006)).
Indeed, “it is now beyond cavil that summary judgment may be appropriate
even in the fact-intensive context of discrimination cases.” Feingold v. New
York, 366 F.3d 138, 149 (2d Cir. 2004) (internal citation and quotation marks
omitted). Furthermore, “[e]ven in the discrimination context, [] a plaintiff must
provide more than conclusory allegations to resist a motion for summary
judgment.” Holcomb, 521 F.3d at 137. A “nonmoving party must offer some
hard evidence showing that its version of the events is not wholly fanciful.”
Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005) (internal citation
and quotation marks omitted).

14

In discrimination cases, “summary judgment may not be granted simply
because the court believes that the plaintiff will be unable to meet his or her
burden of persuasion at trial. There must either be a lack of evidence in
support of the plaintiff’s position, or the evidence must be so overwhelmingly
tilted in one direction that any contrary finding would constitute clear error.”
Danzer v. Norden Sys., 151 F.3d 50, 54 (2d Cir. 1998) (citations and footnote
omitted). ‘“Nonetheless, when an employer provides convincing evidence to
explain its conduct and the plaintiff’s argument consists of purely conclusory
allegations of discrimination, the Court may conclude that no material issue of
fact exists and it may grant summary judgment to the employer.’” Risco v.
McHugh, 868 F. Supp. 2d 75, 98 (S.D.N.Y. 2012) (quoting Walder v. White
Plains Bd. of Educ., 738 F. Supp. 2d 483, 493 (S.D.N.Y. 2010)); see also Stern
v. Trs. of Columbia Univ., 131 F.3d 305, 312 (2d Cir. 1997) (same).
c.

Summary Judgment in Pro Se Cases

When considering a motion for summary judgment, the Court must
“construe all evidence in the light most favorable to the nonmoving party,
drawing all inferences and resolving all ambiguities in its favor.” Dickerson v.
Napolitano, 604 F.3d 732, 740 (2d Cir. 2010) (citing LaSalle Bank Nat’l Ass’n v.
Nomura Asset Capital Corp., 424 F.3d 195, 205 (2d Cir. 2005)). In a pro se
case, the Court must go one step further and liberally construe the party’s
pleadings “to raise the strongest arguments that they suggest.” McPherson v.
Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d
787, 790 (2d Cir. 1994)).
15

Nonetheless, a pro se litigant must still be held to the normal
requirements of summary judgment, and “bald assertion[s], [] unsupported by
evidence,” will not overcome a motion for summary judgment. Carey v.
Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991); Stinson v. Sheriff’s Department, 499
F. Supp. 259, 262 (S.D.N.Y. 1980) (holding that the liberal standard accorded
to pro se pleadings “is not without limits, and all normal rules of pleading are
not absolutely suspended”). Litigants “should be on notice from the very
publication of Rule 56(e) that a party faced with a summary judgment motion
may not rest upon the mere allegations or denials of the party’s pleading and
that if the party does not respond properly, summary judgment, if appropriate,
shall be entered against him.” Champion v. Artuz, 76 F.3d 483, 485 (2d Cir.
1996) (quoting Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988) (internal
quotation marks omitted)).
2.

The Analysis of Title VII Claims

Title VII discrimination and retaliation claims are properly analyzed
under the three-step burden-shifting framework set forth by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under the
McDonnell Douglas framework, a plaintiff alleging discrimination under Title VII
must first demonstrate a prima facie case of discrimination. McDonnell Douglas
Corp., 411 U.S. at 802. The Second Circuit has explained that a plaintiff’s
burden at this stage is minimal. Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d
456, 467 (2d Cir. 2001). Nonetheless, in order to state a prima facie case for
discrimination, “a plaintiff must proffer some admissible evidence of
16

circumstances that would be sufficient to permit an inference of discriminatory
motive,” Bennett v. Watson Wyatt & Co., 136 F. Supp. 2d 236, 246 (S.D.N.Y.
2001), aff’d, 51 F. App’x 55 (2d Cir. 2002) (summary order), and “cannot meet
[its] burden through reliance on unsupported assertions,” Goenaga v. March of
Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). “Statements that
are devoid of any specifics, but replete with conclusions, are insufficient to
defeat a properly supported motion for summary judgment.” Griffin v. Ambika
Corp., 103 F. Supp. 2d 297, 308 (S.D.N.Y. 2000) (citation omitted). A plaintiff’s
self-serving statement, without direct or circumstantial evidence to support the
charge, is also insufficient. Fincher v. Depository Trust & Clearing Corp., No. 06
Civ. 9959 (WHP), 2008 WL 4308126, at *3 (S.D.N.Y. Sept. 17, 2008) (citing
Gonzalez v. Beth Israel Med. Ctr., 262 F. Supp. 2d 342, 353 (S.D.N.Y. 2003)),
aff’d, 604 F.3d 712 (2d Cir. 2010).
If a plaintiff successfully presents a prima facie case of discrimination,
the defendant must then rebut the presumption by offering legitimate and nondiscriminatory reasons for the adverse employment action demonstrated in
plaintiff’s prima facie case. Abdu-Brisson, 239 F.3d at 468-69. The defendant’s
burden at this step in the analysis is also “light.” Greenway v. Buffalo Hilton
Hotel, 143 F.3d 47, 52 (2d Cir. 1998). “The employer need not persuade the
court that it was motivated by the reason it provides; rather it must simply
articulate an explanation that, if true, would connote lawful behavior.” Id.
Under the third step of the McDonnell Douglas framework, the burden
then shifts back to the plaintiff to prove intentional discrimination by a
17

preponderance of the evidence. Fields v. N.Y. State Office of Mental Retardation
& Developmental Disabilities, 115 F.3d 116, 121 (2d Cir. 1997). The Second
Circuit has explained that “there are two distinct ways for a plaintiff to
prevail — ‘either by proving that a discriminatory motive, more likely than not,
motivated the defendants or by proving both that the reasons given by the
defendants are not true and that discrimination is the real reason for the
actions.’” Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000)
(quoting Fields, 115 F.3d at 121).
B.

Analysis
1.

Plaintiff Does Not Set Forth a Prima Facie Case of
Discrimination on the Basis of National Origin

Title VII prohibits employment-related discrimination on the basis of
race, color, religion, sex or national origin. 42 U.S.C.A. § 2000e-2(a). In order
to state a prima facie case of discrimination, Plaintiff must show that: (i) she is
a member of a protected class; (ii) she was qualified for the position in
question; (iii) she suffered an adverse employment action; and (iv) the adverse
action took place under circumstances giving rise to an inference of
discrimination. See, e.g., Reynolds v. Barrett, 685 F.3d 193, 202 (2d Cir.
2012); Ruiz v. County of Rockland, 609 F.3d 486, 491-92 (2d Cir. 2010). A
plaintiff may raise an inference of discrimination for the purposes of making
out a prima facie case by relying on the theory of disparate treatment; that is,
by showing that her employer treated her less favorably than a similarly
situated employee outside her protected group. Mandell v. County of Suffolk,
316 F.3d 368, 379 (2d Cir. 2003). Significantly, and as the Supreme Court has
18

recognized, “Title VII … does not set forth a general civility code for the
American workplace.” Burlington Northern and Santa Fe Ry. Co. v. White, 548
U.S. 53, 68 (2006) (internal citation and quotation marks omitted).
Defendant does not dispute that Plaintiff is a member of a protected class
as an individual of American national origin, nor does it dispute that Plaintiff
suffered an adverse action when it terminated her employment. Rather,
Defendant argues that Plaintiff cannot establish that she was qualified for her
position or that her termination occurred under circumstances giving rise to an
inference of discrimination based on her American national origin. (Def.
Br. 13). These arguments are analyzed below.
a.

Plaintiff Was Not Qualified for Her Position

The Court finds that the incidents making up Plaintiff’s disciplinary
history, in addition to the requests from multiple facilities that she not be
assigned to their location due to her lack of professionalism or skills,
demonstrate that Plaintiff was unqualified for her position. Indeed, Plaintiff
does not put forth any affirmative evidence that she was qualified for her
position. Rather, Plaintiff denies certain aspects of the three disciplinary
incidents in which she was involved; the Court construes these denials as
Plaintiff’s assertion that she was, in fact, qualified for her position. The Court
has searched the record in consideration of the substance of Plaintiff’s
arguments; the record reveals scant, if any, support for Plaintiff’s viewpoint.
With regards to the first incident, Plaintiff does not contest the
underlying conduct for which she was disciplined — she does not dispute that
19

she did not shower the individual she was assigned to shower, that she was
found with her things near the exit, or that she failed to fill out the requisite
paperwork for the facility. (See Jacob Dep. 146). The only fact Plaintiff refutes
is that she left an individual “in feces,” stating that “was a lie” and that she
“never left the individuals in feces.” (Id.). Not only does a dispute as to this
particular detail fail to raise an issue of material fact (or undermine the basis
for her discipline), but also it fails to bolster any argument that Plaintiff was
qualified for her position.
As to the second incident, in which Plaintiff arrived 30 minutes late and
used a speakerphone inappropriately, Plaintiff simply summarily denies that it
ever happened. (See, e.g., Pl. Opp. 7 (noting on a document titled “Employee
Notes” next to a summary of the January 2013 disciplinary incident and her
discipline for it, “never happened”)). As Defendant points out, it is unclear
whether Plaintiff means to contend that the January 7, 2013 incident itself
never took place, or that the January 16, 2013 meeting discussing her
misconduct never took place. (Def. Reply 3 n.3). In any event, Plaintiff’s
unsupported contention, “never happened,” is in direct contradiction to records
confirming that (i) on January 7, 2013, her shift was scheduled to start at 4:00
p.m., but she did not clock in until 4:30 p.m., and (ii) the January 16 meeting
did take place. (Adams Aff. Ex. E, F). Plaintiff does not meaningfully contest
the accuracy of these records or provide anything more than her conclusory
denial in support of her argument. While the Court must draw all reasonable
inferences in the Plaintiff’s favor, it need not draw unreasonable inferences at
20

war with undisputed record evidence. See Berk, 380 F. Supp. 2d at 342. And,
such a conclusory assertion, “devoid of any specifics,” is insufficient to defeat
Defendant’s properly supported motion for summary judgment. Griffin, 103 F.
Supp. 2d at 308.
Concerning the third disciplinary incident, in which Plaintiff left a
residence before her coverage arrived, again Plaintiff denies that this ever
happened. In her deposition, she intimated that she had abided by the rules
(see Jacob Dep. 137 (“Everyone came in at 11:00. The shift was over.”); id. at
138 (“[W]hen I left, all the staff was — whatever staff was there, was there.”)),
but ultimately admitted that she did not know for a fact whether everyone who
was supposed to be working the 11:00 p.m. shift was present (id.). Plaintiff’s
equivocal, conclusory statements are unsupported by any other record
evidence, and, more importantly, are insufficient to create an issue of fact or
support her qualification for her position. (See id. at 133-43).
On the other hand, a review of the record reveals abundant support for
Defendant’s argument that Plaintiff was not properly qualified for her position
as a per diem DSP. During her 14 months of employment, Plaintiff received
two disciplinary counseling meetings for two separate incidents. Multiple
residences requested that she not be assigned to their facility, either due to her
unsatisfactory work performance or because she did not possess the skills
needed to support the individuals residing in those facilities. And, on February
15, 2013, when Plaintiff left a residence prior to her replacement’s arrival
thereby jeopardizing the welfare of the individuals housed there, she
21

demonstrated that she did not possess the requisite sense of responsibility for
the vulnerable population in her charge. On this basis alone, Plaintiff has
failed to state a prima facie case of discrimination, and Defendant is entitled to
summary judgment on her discrimination claim.
b.

Plaintiff Cannot Demonstrate That Any Adverse Action
Occurred Under Circumstances Giving Rise to an
Inference of Discrimination

The Court finds that Plaintiff’s conclusory allegations of discrimination,
and complaints about her co-workers’ allegedly anti-American sentiments, are
insufficient to give rise to any inference of discrimination. In support of her
discrimination arguments, Plaintiff only makes sweeping, conclusory
statements that Defendant denied her available work, paid her for an
unworked day, failed to advise her of the ongoing investigation for job
abandonment, and terminated her because she was American. (See, e.g.,
Jacob Dep. 180 (“Q: Why do you think these actions were discriminatory? A:
Because I am American and not from a foreign country.”); Pl. Opp. 2 (“The
motion should be denied because I was discriminated against my national
origin American. I was terminated wrongfully in March when my last day of
work was Feb. 15.”)).
Plaintiff does not point to any direct or circumstantial evidence that
could give rise to an inference of discrimination; instead, she points to adverse
employment actions and then claims they were discriminatory. She does not
identify any similarly situated individual of non-American origin (that is,

22

anyone outside her protected class) who was treated more favorably. 8 Nor does
Plaintiff point to any derogatory remarks that could give rise to an inference of
national origin discrimination. The only remarks she references involve the
social companionship and musical preferences of her colleagues of nonAmerican origin. (See, e.g., Jacob Dep. 93 (complaining that her coworkers
would say, “I go out to Trinidadian parties, I don’t go to American parties or
listen to American music[.]”)). Feeling socially or culturally excluded by peers
in the workplace, while an unfortunate and sympathetic position, is not
something for which Title VII provides a remedy. See Burlington Northern, 548
U.S. at 68 (cautioning that anti-discrimination laws do not create a “general
civility code” for the American workplace). “Furthermore, even assuming
arguendo, that there was a genuine issue regarding the existence of
discriminatory intent based on the comments of Plaintiff’s supervisor and
coworkers, there is absolutely no evidence of any connection between these
comments and any adverse employment action.” O’Kane v. Lew, No. 10 Civ.
5325 (PKC), 2013 WL 6096775, at *9 (E.D.N.Y. Nov. 20, 2013) (finding that,
where plaintiff provided ambiguous, anecdotal examples of workplace
interactions that made him “feel left out,” as hurtful as plaintiff may have
found certain comments or actions, his subjective perceptions of them alone
were insufficient to establish discriminatory motive); see also Tomassi v.
Insignia Fin. Grp, Inc., 478 F.3d 111, 115 (2d Cir. 2007) (“[T]he more remote
8

By contrast, Defendant supplies evidence that it has recently terminated DSPs of both
non-American and American origin for the very same reason, job abandonment, as
Plaintiff. (Def. 56.1 ¶¶ 45-46).

23

and oblique the remarks are in relation to the employer’s adverse action, the
less they prove that the action was motivated by discrimination.”); Johnson v.
County of Nassau, 480 F. Supp. 2d 581, 599-600 (E.D.N.Y. 2007) (finding that
a comment by plaintiff’s supervisor was a “stray remark” that was “insufficient
to raise an inference of discrimination because there [was] no nexus between
his remark and any of the alleged adverse acts”).
In support of her related argument that it was discriminatory that she
was “punched in” for days she did not work, Plaintiff testified that once she
arrived for her shift, it turned out that the individual assigned to her care had
already been discharged, and so she did not work that day. (Jacob Dep. 186).
By Plaintiff’s own description of the facts, she was turned away from work that
day because of a lack of need, and not for any discriminatory reason. As it
happened, because the schedule had changed at the last minute, Defendant
paid Plaintiff (perhaps mistakenly) for that day anyway. This was clearly not
an attempt to adversely affect Plaintiff’s entitlement to unemployment benefits.
The effect — Plaintiff having to reimburse unemployment benefits for that
day — was not adverse at all. Plaintiff was not entitled to a windfall of both
regular pay and unemployment benefits for a day on which she was paid as if
she had actually worked.
Indeed, Plaintiff’s own testimony underscores the Court’s conclusion that
reasons underlying any adverse or allegedly adverse employment actions were
not discriminatory. (See, e.g., Jacob Dep. 97 (admitting that no one at
Defendant ever told Plaintiff that they did not like her because she was
24

American); 183-84 (admitting that she was unable to provide any comparators
who were treated differently); 202 (admitting that no one at Defendant ever told
Plaintiff that she was not assigned shifts because of her national origin as an
American, or because she had filed an EEOC charge or NYDOL complaint); 257
(admitting that no one at Defendant ever made a remark that Plaintiff was
being treated differently or terminated because she was American)). Finally,
both Willingham and Adams, the Defendant’s managerial employees who were
responsible for making the decision to terminate Plaintiff, were of the same
national origin as Plaintiff, defeating any inference of discrimination on that
ground.
In short, Plaintiff “has identified no evidence, whether direct or
circumstantial, that would permit a reasonable fact-finder to draw an inference
that [the alleged adverse employment actions were] the result of unlawful
discrimination against [her].” Wali, 678 F. Supp. 2d at 182 (internal citation
omitted). On this basis, too, Plaintiff has failed to state a prima facie case of
discrimination, and Defendant is entitled to summary judgment on her
discrimination claim.
c.

Plaintiff Cannot Identify a Genuine Issue of Fact
Concerning Defendant’s Non-Discriminatory Reasons for
Terminating Her Employment

Even if Plaintiff had established a prima facie case of discrimination,
which she has not, Defendant has clearly established a non-discriminatory
justification for the adverse employment actions of which she complains. First,
regarding the denial of shifts, it is undisputed that Plaintiff was not a full-time
25

employee, but rather was hired on a per diem, as needed basis. Additionally,
as discussed above, AHRC NYC has submitted substantial, unrefuted evidence
showing that Plaintiff’s non-assignment of work and ultimate termination were
a result of her unsatisfactory work performance and lack of requisite skills.
See Auguste v. N.Y. Presbyterian Med. Ctr., 593 F. Supp. 2d 659, 666 (S.D.N.Y.
2009) (holding poor work performance is well-established as legitimate, nondiscriminatory reason for firing employee). Plaintiff’s quibbles with certain of
facts underlying these reasons do not undermine their legitimacy. See
McPherson v. N.Y.C. Dep’t of Educ., 457 F.3d 211, 216 (2d Cir. 2006) (“In a
discrimination case, however, we are decidedly not interested in the truth of
the allegations against plaintiff. We are interested in what motivated the
employer.” (internal citation and quotation marks omitted)).
Moreover, neither Plaintiff nor the record provides any evidence of
pretext, or any evidence that other, similarly situated employees not in
Plaintiff’s protected class were treated differently despite similar work
performance issues. Thus, taking Plaintiff’s claims through the entirety of the
McDonnell Douglas framework further confirms that they must fail as a matter
of law.
2.

Plaintiff Does Not Set Forth a Prima Facie Case of Retaliation
a.

Plaintiff Fails to Establish That Defendant Retaliated
Against Her for Filing the EEOC Charge

Title VII also makes it unlawful for an employer to discriminate against
an employee by retaliating against her because she has “opposed” a practice
that Title VII forbids. 42 U.S.C. § 2000e-3(a). To establish a prima facie case of
26

retaliation under Title VII, a plaintiff must demonstrate that (i) she engaged in
protected activity; (ii) the employer was aware of that activity; (iii) the employee
suffered a materially adverse action; and (iv) there was a causal connection
between the protected activity and that adverse action. Kelly v. Howard I.
Shapiro & Assocs. Consulting Eng’rs, P.C., 716 F.3d 10, 14 (2d Cir. 2013).
Defendant does not dispute that Plaintiff filed an EEOC charge in
December 2012, that it was aware of this charge around that same time, or
that it terminated her employment effective March 6, 2013. (Def. Br. 18).
However, Defendant contests that Plaintiff has established any causal
connection between her filing of the EEOC Charge and any adverse
employment action. (Id.).
In order to establish the causal connection between her filing of the
EEOC Charge and an adverse employment action, Plaintiff can either offer
direct evidence of retaliatory animus, or offer indirect, circumstantial evidence
by demonstrating that the protected activity was followed in close proximity by
the adverse treatment. Cobb v. Pozzi, 363 F.3d 89, 108 (2d Cir. 2004). Plaintiff
has not presented any evidence of direct retaliatory animus by Defendant. 9 As
it concerns indirect evidence of proximity, “[t]he cases that accept mere
temporal proximity between an employer’s knowledge of protected activity and

9

To the extent that Plaintiff might argue that the statements of her colleagues regarding
their non-American social preferences and music tastes constitute direct evidence of
retaliatory animus, they do not. These types of allegations fall within the realm of
prototypical workplace incidents that are not actionable under Title VII’s anti-retaliation
provision. See Burlington, 548 U.S. at 68 (“[P]ersonality conflicts at work that generate
antipathy and snubbing by supervisors and co-workers are not actionable.” (internal
citation and quotation marks omitted)).

27

an adverse employment action as sufficient evidence of causality to establish a
prima facie case uniformly hold that the temporal proximity must be ‘very
close,’” Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (citation
omitted), although there is no bright-line rule on how close is close, see
Gorman-Bakos v. Cornell Coop. Extension of Schenectady Cnty., 252 F.3d 545,
554-55 & n.5 (2d Cir. 2001) (collecting cases). However, “where timing is the
only basis for a claim of retaliation, and gradual adverse job actions began well
before the plaintiff had ever engaged in any protected activity, an inference of
retaliation does not arise.” Hartley v. Rubio, 785 F. Supp. 2d 165, 182
(S.D.N.Y. 2011) (citing Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87,
95 (2d Cir. 2001)).
Courts in this Circuit have granted summary judgment for defendants
where plaintiff was warned about his or her inadequate work performance prior
to engaging in protected activity. See Deebs v. Alstom Transp., Inc., 346 F.
App’x 654, 657-58 (2d Cir. 2009) (summary order) (finding where adverse
employment actions due to poor performance preceded plaintiff’s filing of an
EEOC complaint, no causal connection could arise despite temporal proximity);
Slattery, 248 F.3d at 95 (finding where adverse employment action due to
deficient performance commenced five months prior to plaintiff’s filing of an
EEOC complaint, there could be no causal connection between plaintiff’s
complaint and his firing); Dixon v. Int’l Fed’n of Accountants, No. 09 Civ. 2839
(HB), 2010 WL 1424007, at *6 (S.D.N.Y. Apr. 9, 2010) (“[Plaintiff] was subjected
to repeated critiques and complaints about her management and performance
28

skills before she ever lodged any complaints about discrimination and, as such,
her retaliation claim must be dismissed.”), aff’d, 416 F. App’x 107 (2d Cir.
2011) (summary order); Ricks v. Conde Nast Pubs., 92 F. Supp. 2d 338, 347-48
(S.D.N.Y. 2000) (granting summary judgment for defendant where plaintiff
received two warnings prior to filing her complaint).
Here, Defendant put Plaintiff on notice of deficiencies in her performance
some 10 months before she filed the EEOC complaint, at her first disciplinary
counseling meeting. Plaintiff was aware that certain AHRC NYC-affiliated
residences had specifically requested that she not be reassigned to their
facility. Moreover, Plaintiff’s EEOC complaint itself alleged adverse
employment action in the form of denial of shifts (Def. 56.1 ¶ 49), thereby
confirming that this adverse employment action was occurring, if at all, prior to
any protected conduct in which she may have engaged. Plaintiff continued to
have performance issues following her EEOC complaint; the act of filing an
EEOC complaint does not provide an employee immunity from the
consequences of poor performance. Finally, Plaintiff herself admitted that no
one at Defendant ever told her that she was not assigned shifts because of her
national origin as an American, or because she had filed an EEOC charge.
(Jacob Dep. 202). Therefore, for those reasons, Plaintiff has failed to state a
prima facie case of retaliation, and Defendant is entitled to summary judgment
on her federal retaliation claim. 10

10

Here, too, even if Plaintiff had established a prima facie case of retaliation, Defendant’s
non-discriminatory, non-pretextual reasons for denying her shifts and terminating her
ensure that her claims also fail under a full McDonnell Douglas analysis. See Evans v.

29

b.

Plaintiff Fails to Establish that Defendant Retaliated
Against Her for Filing the NYDOL Complaint

Plaintiff also contends that she suffered retaliation for filing her NYDOL
Complaint. While such a claim is not actionable under federal law, the Court
liberally construes Plaintiff’s pro se submissions to plead a violation of New
York Labor Law Section 215. This section states:
No employer … shall discharge, threaten, penalize, or in
any other manner discriminate or retaliate against any
employee (i) because such employee has made a
complaint … to the commissioner or his or her
authorized representative … that the employer has
engaged in conduct that the employee, reasonably and
in good faith, believes violates any provision of this
chapter ….
N.Y. Lab. Law § 215(1)(a)(i). In order to establish a prima facie case under this
section, Plaintiff “must adequately plead that while employed by the defendant,
she made a complaint about the employer’s violation of the law and, as a
result, was terminated or otherwise penalized, discriminated against, or
subjected to an adverse employment action.” Copantitla v. Fiskardo Estiatorio,
Inc., 788 F. Supp. 2d 253, 302 (S.D.N.Y. 2011) (citation omitted). Once a prima
facie case of retaliation is established under the New York Labor Law, the
burden of production shifts back and forth, just as under the federal McDonnell
Douglas framework. Id. (explaining that after a prima facie case is established,

N.Y. Botanical Garden, 253 F. Supp. 2d 650, 661 (S.D.N.Y. 2003) (granting summary
judgment for defendant on retaliation claim where plaintiff failed to raise a material
issue of fact with regard to whether defendant’s proffered non-discriminatory reason for
firing him was pretextual), aff’d, 88 F. App’x 464 (2d Cir. 2004) (summary order).

30

the burden shifts to defendant to demonstrate a legitimate, non-discriminatory
reason for its action, and then back to plaintiff to establish pretext).
However, Plaintiff again fails to state a prima facie case of retaliation.
Defendant does not dispute that Plaintiff filed the NYDOL complaint and that it
denied her shifts and ultimately terminated her employment, but Plaintiff
cannot establish a causal connection between her complaint and these adverse
employment actions. Circumstantially, Plaintiff was terminated on March 6,
2013, a little over a month following the January 28, 2013 NYDOL complaint.
(Def. 56.1 ¶ 54). However, as discussed above, Plaintiff was facing adverse
employment actions for her inadequate work performance well before the
NYDOL complaint; indeed, by that time, Plaintiff had received two disciplinary
counseling sessions (the second having occurred earlier in January 2013).
Thus temporal proximity cannot give rise to an inference of retaliation.
Moreover, other circumstantial evidence suggests that Defendant
responded only favorably to Plaintiff’s claim for purported unpaid wages — it
gave her the benefit of the doubt in light of Hurricane Sandy business
disruptions and promptly paid the full amount 10 days after she filed the
complaint. In further support of a finding of no retaliation, Plaintiff herself
admitted that no one at Defendant ever told her that she was not assigned
shifts because she had filed an NYDOL complaint. (Jacob Dep. 202). Plaintiff
has therefore failed to state a prima facie case of retaliation, and Defendant is

31

entitled to summary judgment on what the Court has construed as a state law
retaliation claim. 11
CONCLUSION
For the foregoing reasons, Defendant’s motion for summary judgment is
GRANTED in its entirety. The Clerk of Court is directed to terminate all
pending motions, adjourn all remaining dates, and close this case. The Court
certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this order
would not be taken in good faith; therefore, in forma pauperis status is denied
for purposes of an appeal. See Coppedge v. United States, 369 U.S. 438, 44445 (1962).
SO ORDERED.
Dated:

11

December 1, 2014
New York, New York

__________________________________
KATHERINE POLK FAILLA
United States District Judge

Additionally, as discussed more fully above, Defendant has established nondiscriminatory reasons for adverse employment actions taken against Plaintiff, as to
which Plaintiff has failed to raise a genuine issue of material fact.

32