Forest v. New York State Department of Mental Health
Filing
76
OPINION & ORDER re: 59 FIRST MOTION for Summary Judgment . filed by New York State Office of Mental Health. For the reasons stated above, defendant's motion for summary judgment is GRANTED. The Clerk of Court is directed to terminate the motion at Docket No. 59 and to terminate the action. (As further set forth in this Order) (Signed by Judge Katherine B. Forrest on 11/10/2015) (lmb)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
RUTH A. FOREST,
:
:
Plaintiff,
:
:
-v:
:
NEW YORK STATE OFFICE OF MENTAL
:
HEALTH, SUEANN SMITH, and SHELLEY
:
DEPEW, (Sued in their Official Capacity
:
pursuant to 42 U.S.C. § 1983),
:
:
Defendants.
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:
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: November 10, 2015
13-cv-1762 (KBF)
OPINION & ORDER
KATHERINE B. FORREST, District Judge:
On March 14, 2013, plaintiff Ruth A. Forest sued her employer, defendant
New York State Office of Mental Health (“NYSOMH”), and two supervisors. (ECF
No. 2.) Plaintiff’s complaint alleged that she had been subject to gender
discrimination and retaliation in violation of state and federal law. As discussed
below, plaintiff’s gender discrimination claims were dismissed at an earlier stage for
failure to state a claim. Now before the Court is defendant’s motion for summary
judgment on the sole remaining claim of retaliation. (ECF No. 59.) Because
plaintiff has failed to raise a triable issue of fact as to whether her protected
activities were but-for causes of the employment actions she cites as materially
adverse or that defendant’s non-retaliatory explanations are pre-textual,
defendant’s motion is GRANTED.
I.
INTRODUCTION AND BACKGROUND
A.
The Events
The following facts are undisputed unless otherwise indicated.
Plaintiff is a Registered Nurse employed by defendant NYSOMH in the
Mental Health Unit (“MHU”) at Sullivan Correctional Facility, where she provides
mental health services to inmates. (Pl.’s 56.11 ¶¶ 265-66; Def.’s 56.12 ¶¶ 1, 7.) She
has worked there since 2006. (Pl.’s 56.1 ¶ 266.) Defendant Shelley Depew was the
MHU’s Nurse Administrator from October 2002 to March 2014, and defendant
SueAnn Smith was the MHU’s Forensic Unit Chief from December 2008 to January
2013. (Def.’s 56.1 ¶¶ 31-32.)
In March 2011, plaintiff filed an internal complaint with defendant
NYSOMH’s Affirmative Action department, alleging gender discrimination and
retaliation arising from prior complaints plaintiff had raised.3 (Pl.’s 56.1 ¶ 333.)
Shortly thereafter, plaintiff went on medical leave, from which she returned in
1
The notation “Pl.’s 56.1” refers to plaintiff’s statement of undisputed material facts, submitted under Local Rule
56.1. (ECF No. 68.) This decision relies only on those facts defendant did not dispute with citations to admissible
evidence in its response. (ECF No. 75.) See Local Rule 56.1(d) (“Each statement by the movant or opponent
pursuant to Rule 56.1(a) and (b), including each statement controverting any statement of material fact, must be
followed by citation to evidence which would be admissible, set forth as required by Fed. R. Civ. P. 56(c).”).
2
The notation “Def.’s 56.1” refers to defendant’s statement of undisputed material facts, submitted under Local
Rule 56.1. (ECF No. 60.) This decision relies only on those facts plaintiff did not dispute with citations to
admissible evidence in her response. (ECF No. 68.) See note 1, supra. In many instances, plaintiff did not comply
with the requirement of Local Rule 56.1(c) that a non-moving party “specifically controvert[] [the moving party’s
assertions] by a correspondingly numbered paragraph,” but instead recounted alternative versions of events in
particular paragraphs she then cited repeatedly. (See, e.g., Pl.’s 56.1 ¶¶ 11, 19-22.) The Court should not be put in
the position of trying to determine which parts, if any, of defendant’s statement plaintiff actually denies.
Nonetheless, the Court has carefully parsed plaintiff’s responses to defendant’s statement and given plaintiff every
benefit of the doubt in resolving factual disputes.
3
As discussed below, the allegations that were the basis for the March 2011 complaint have been dismissed; this
factual background only recounts allegations and events that form the basis for plaintiff’s remaining retaliation
claim.
2
January 2012. (Def.’s 56.1 ¶ 83.) During plaintiff’s medical leave an Affirmative
Action Officer investigated her complaint and found that there was “insufficient
evidence to support [the] complaint.” (ECF No. 26, Exh. A.)
When plaintiff returned to work, Smith informed her that her schedule would
be temporarily modified and asked her to review policy changes that had been
introduced during plaintiff’s leave. (Def.’s 56.1 ¶¶ 85, 92; Pl.’s 56.1 ¶ 342.) Plaintiff
filed a union grievance in January 2012 because she had not received 30 days’
notice of her schedule change; the grievance did not refer to discrimination. (Def.’s
56.1 ¶¶ 98, 112; ECF No. 63, Exh. H.) Plaintiff’s requested remedy was a return to
her pre-leave schedule, and as that schedule was back in place by the time
management made a determination on the grievance in March 2012, it was deemed
resolved. (Def.’s 56.1 ¶¶ 100, 105, 111; ECF No. 61, Exh. C.)
During the first months after plaintiff’s return to work, defendant’s Human
Resources staff requested that administrators review the lunch break policy, which
required shift employees like plaintiff not to leave the facility, with all staff. (Def.’s
56.1 ¶¶ 135-37.) Smith and Depew notified the staff that, notwithstanding prior
practice, any time spent picking up food off-site would have to be charged. (Id. ¶¶
136, 138; Forest Tr.4 at 51:1-52:14.) This was a “blanket policy [which] applied to
everyone.” (Forest Tr. at 52:7-11.)
4
The notation “Forest Tr.” refers to the transcript of plaintiff’s August 19, 2015 deposition, portions of which are
available as ECF No. 63, Exh. A; ECF No. 69, Exh. A; and ECF No. 72, Exh. A.
3
Plaintiff alleges that during the first months after her return to work she was
subjected to greater scrutiny, including in particular scrutiny over her use of red ink
in patient charts in March 2012. (Pl.’s 56.1 ¶¶ 158, 352.) According to plaintiff, this
followed her use of red pen to indicate that a patient was going on a hunger strike,
which did not violate any policy. (Id. ¶ 358; Forest Tr. at 52:22-53:9.) Defendant
alleges that red ink is customarily used in patient charts only to indicate allergies
and that its proper use was discussed with all staff at a staff meeting. (Def.’s 56.1 ¶
161, 163.) Although the parties disagree on this point, the existence or nonexistence of a red ink policy is not material to plaintiff’s retaliation claim because,
as discussed below, her allegation of increased scrutiny without more does not
constitute a materially adverse action even when aggregated with other acts.
In late February 2012, Depew reported to Smith that she had discovered that
plaintiff had signed two forms purporting to document a patient assessment on days
the patient’s unit had been closed and after the patient had been discharged. (Id.
¶¶ 169-71; Pl.’s 56.1 ¶ 361.) Defendant’s Human Resources department initiated an
investigation, as part of which plaintiff was interrogated on April 10, 2012. (Def.’s
56.1 ¶¶ 172-73.) Plaintiff verified that she had signed the forms, but noted that
another nurse, Richard Parks, had filled out the identifying information on the
form. (Id. ¶¶ 174-80; Pl.’s 56.1 ¶¶ 170, 363.) On April 12, 2012 defendant’s Human
Resources department determined that plaintiff “did not exercise sound judgment”
and recommended that she receive a Notice of Discipline. (Def.’s 56.1 ¶¶ 196-97.)
4
On April 20, 2012, plaintiff filed a New York State Division of Human Rights
(“DHR”) Complaint against defendant, alleging that Depew and Smith had
discriminated against her on the basis of her gender and retaliated against her for
her March 2011 internal complaint. (Def.’s 56.1 ¶ 113; ECF No. 63, Exh. D.)
Plaintiff’s DHR Complaint alleged that, inter alia, she had been “criticized or
disciplined for the same offenses for which male nurses were not disciplined,” male
nurses had received preferential “assignments, vacations, evaluations and
privileges,” she had been “subjected to an ‘interrogation’ into a bogus charge that
[she] completed a form for a patient who had already been discharged,” and Depew
had “slandered and defamed” plaintiff’s professional reputation. (ECF No. 63, Exh.
D at 868-69.)
On May 2, 2012, plaintiff was issued a Notice of Discipline in connection with
the April investigation into the two improper patient assessment forms. (Def.’s 56.1
¶ 198; ECF No. 63, Exh. G.) The Notice recommended that plaintiff be suspended
four weeks without pay. (ECF No. 63, Exh. G at 83.) Plaintiff contested the Notice,
which resulted in an Agency-level hearing in August 2013. (Def.’s 56.1 ¶¶ 199-200.)
The proposed penalty was adopted at the hearing, but plaintiff and defendant later
negotiated an agreement that plaintiff would instead be put on one year probation.
(Def.’s 56.1 ¶¶ 201-02; Pl.’s 56.1 ¶¶ 202, 368.)
In June 2012 Smith assigned plaintiff to teach 13 weeks of medication
education classes to the patients in the MHU. (Def.’s 56.1 ¶ 206.) Plaintiff alleges
that this represented an extra week above the normal twelve; defendant alleges
5
that each nurse was required to teach 12 to 14 weeks and that plaintiff was
assigned the same number of classes as her peers. (Pl.’s 56.1 ¶¶ 203, 380; Def.’s
56.1 ¶¶ 204-05.) As discussed below, plaintiff has entirely failed to rebut this nonretaliatory explanation for the assignment.
Plaintiff further alleges that, later in June, Depew denied a request for a
scheduling adjustment. (Pl.’s 56.1 ¶ 213.) Defendant argues that there is no
evidence of this denial and that plaintiff cannot recall the adjustment she allegedly
requested. (Def.’s 56.1 ¶¶ 213-15.)
On August 31, 2012, Depew called plaintiff at home to inquire about a
discrepancy in the MHU’s syringe count. (Def.’s 56.1 ¶ 223.) Plaintiff alleges that it
was not Depew’s normal practice to check the syringe count, that there never was a
discrepancy that day, and that Depew altered paperwork to make it appear that
there had been. (Pl.’s 56.1 ¶ 219.) Defendant alleges that plaintiff failed to
document the fact that she had disposed of a syringe after a patient refused a shot.
(Def.’s 56.1 ¶ 219.) Plaintiff testified at her deposition that she had not documented
the syringe disposal. (Forest Tr. 94:4-21.) Depew provided a copy of the relevant
policy with the entire staff at their next staff meeting. (Id. ¶ 233.)
In October 2012, DHR issued a Determination and Order After Investigation
as to plaintiff’s April DHR Complaint. (Id. ¶ 117; ECF No. 63, Exh. E.) DHR found
that there was “no probable cause to believe that the respondent [ – NYSOMH – ]
ha[d] engaged in or [was] engaging in the unlawful discriminatory practice
complained of.” (ECF No. 63, Exh. E at 919.) The DHR Determination recounted a
6
number of factual findings and dismissed the matter, as “[i]nsufficient evidence
exist[ed] to suggest that complainant [was] being treated differently than male
employees because of her gender.” (Id. at 920.)
In December 2012 the United States Equal Employment Opportunity
Commission similarly dismissed plaintiff’s claims against defendant, noting that it
had “adopted the findings of the state or local fair employment practices agency that
investigated this charge.” (Def.’s 56.1 ¶ 128; ECF No. 63, Exh. F at 857.)
On March 14, 2013, plaintiff initiated this lawsuit, representing herself pro
se. (ECF No. 2.)
On April 18, 2013, plaintiff and Parks, her co-worker, argued. (Def.’s 56.1 ¶
244.) According to plaintiff, only Parks raised his voice. (Pl.’s 56.1 ¶ 244.) The two
met separately with the Director of Nursing, who advised both nurses that their
behavior violated a number of policies. (Def.’s 56.1 ¶¶ 246-49.) Both employees
were offered changes in the time and location of their work and advised to attend
trainings to avoid similar situations. (Id. ¶ 250-53.) Plaintiff’s work schedule did
not change and she did not attend any training related to the incident. (Id.)
B.
Litigation History
As discussed above, plaintiff filed her complaint in this suit pro se in March
2013. (ECF No. 2.) She later acquired counsel, who amended the original
complaint twice; the operative complaint was filed November 8, 2013. (ECF Nos.
11, 21.) Plaintiff’s complaint included claims for gender discrimination and
retaliation under Title VII against defendant New York State Office of Mental
7
Health and claims for violations of equal protection rights under 42 U.S.C. § 1983
against both Smith and Depew in their official capacities. (ECF No. 21 at 16-17.)
The defendants moved to dismiss plaintiff’s complaint. (ECF No. 24.) On
November 24, 2014, Judge Cathy Seibel held a conference at which she ruled from
the bench, partially granting and partially denying the motion to dismiss. (MTD
Tr.5 at 27:4-10.) Judge Seibel ruled that plaintiff’s allegations,6 read in the light
most favorable to plaintiff, did not amount to “adverse employment action” as
defined for Title VII discrimination claims. (Id. at 16:2-6.) Judge Seibel dismissed
plaintiff’s Title VII discrimination claims against NYSOMH and, because equal
protection claims under § 1983 “must stand or fall together” with Title VII claims,
dismissed the claims against Smith and Depew. (Id. at 26:12-20.)
Judge Seibel did not, however, dismiss plaintiff’s Title VII retaliation claim
against NYSOMH. In Judge Seibel’s view, “[t]aken individually, many of [plaintiff’s
allegations] seem like ‘petty slights or minor annoyances,’ but they may amount to
materially adverse actions, especially when aggregated.” (Id. at 24:3-6.) Judge
Seibel also determined that the temporal period between plaintiff’s alleged
protected activities and defendant’s alleged retaliation was “not so great that the
Court on a motion to dismiss should find that Plaintiff cannot establish an inference
of causal connection as a matter of law.” (Id. at 26:6-8.) Judge Seibel therefore
declined to dismiss plaintiff’s retaliation claim for failure to state a claim.
5
The notation “MTD Tr.” refers to the transcript of Judge Seibel’s November 24, 2014 ruling, which is available as
ECF No. 63, Exh. C.
6
Plaintiff’s operative complaint contains more allegations than those discussed above; only those events relevant to
plaintiff’s surviving Title VII retaliation claims are discussed in this decision.
8
Nonetheless, Judge Seibel dismissed any retaliation claims stemming from events
that occurred before June 26, 2011, based on the statutory requirement that a
plaintiff file an administrative charge within 300 days of an event in order to bring
a civil action based on that event under Title VII. (Id. at 16:22-17:17; 42 U.S.C. §
2000e-5(e)(1)).
In March 2015 this case was transferred to the Court. (See ECF No. 43.)
In September 2015 defendant moved for summary judgment. (ECF No. 59.)
II.
PRINCIPLES OF LAW
A.
Summary Judgment Standard
Summary judgment may not be granted unless a movant shows, based on
admissible evidence in the record, “that 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). The moving party bears the burden of demonstrating “the absence of
a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
On 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).
Once the moving party has asserted facts showing that the nonmoving
party’s claims cannot be sustained, the opposing party must set out specific facts
showing a genuine issue of material fact for trial. Price v. Cushman & Wakefield,
Inc., 808 F. Supp. 2d 670, 685 (S.D.N.Y. 2011); see also Wright v. Goord, 554 F.3d
255, 266 (2d Cir. 2009). “[A] party may not rely on mere speculation or conjecture
9
as to the true nature of the facts to overcome a motion for summary judgment,”
because “[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) (citations omitted); see also Price, 808 F. Supp. 2d
at 685 (“In seeking to show that there is a genuine issue of material fact for trial,
the non-moving party cannot rely on mere allegations, denials, conjectures or
conclusory statements, but must present affirmative and specific evidence showing
that there is a genuine issue for trial.”).
Only disputes relating to material facts—i.e., “facts that might affect the
outcome of the suit under the governing law”—will properly preclude the entry of
summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see
also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986) (stating that the nonmoving party “must do more than simply show that
there is some metaphysical doubt as to the material facts”). The Court should not
accept evidence presented by the nonmoving party that is so “blatantly contradicted
by the record . . . that no reasonable jury could believe it.” Scott v. Harris, 550 U.S.
372, 380 (2007); see also Zellner v. Summerlin, 494 F.3d 344, 371 (2d Cir. 2007)
(“Incontrovertible evidence relied on by the moving party . . . should be credited by
the court on [a summary judgment] motion if it so utterly discredits the opposing
party’s version that no reasonable juror could fail to believe the version advanced by
the moving party.”).
10
B.
Title VII Retaliation Standard
Title VII makes it unlawful “for an employer to discriminate against any of
his employees … because he has opposed any practice made an unlawful
employment practice by [Title VII], or because he has made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding, or hearing
under [Title VII].” 42 U.S.C. § 2000e-3(a). The goal of this provision is “to forbid an
employer from retaliating against an employee because of the latter's opposition to
an unlawful employment practice.” Galdieri-Ambrosini v. Nat’l Realty & Dev.
Corp., 136 F.3d 276, 292 (2d Cir. 1998) (quoting Manoharan v. Columbia Univ. Coll.
of Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir. 1988)).
“In order to show a prima facie case of retaliation in response to a motion for
summary judgment, a plaintiff must submit sufficient admissible evidence to allow
a trier of fact to find: (i) conduct by the plaintiff that is protected activity under Title
VII; (ii) of which the employer was aware; (iii) followed by an adverse employment
action of a nature that would deter a reasonable employee from making or
supporting a discrimination claim; (iv) that was causally connected to the protected
activity.” Cox v. Onondaga Cnty. Sheriff’s Dep’t, 760 F.3d 139, 145 (2d Cir. 2014).
In this case the first, third, and fourth elements are contested.
A “protected activity” for the purposes of a Title VII retaliation claim is one
taken to protest or oppose the discrimination that Title VII prohibits. See 42 U.S.C.
§ 2000e-3(a). An objection “need not rise to the level of a formal complaint in order
to receive statutory protection.” Cruz v. Coach Stores, Inc., 202 F.3d 560, 566 (2d
11
Cir. 2000). The merits of the complaint are distinct from whether it is a protected
activity: “To establish that his activity is protected under Title VII, a plaintiff need
not prove the merit of his underlying discrimination complaint, but only that he was
acting under a good faith, reasonable belief that a violation existed.” Sumner v.
United States Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990).
An adverse employment action supplies the basis for a prima facie retaliation
claim if it “might well deter a reasonable employee from complaining about
discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 69 (2006).
Title VII is only concerned with “retaliation that produces an injury or harm;” it
does not reach “those petty slights or minor annoyances that often take place at
work and that all employees experience.” Id. at 67, 68. However, “in determining
whether conduct amounts to an adverse employment action, the alleged acts of
retaliation need to be considered both separately and in the aggregate, as even
minor acts of retaliation can be sufficiently ‘substantial in gross’ as to be
actionable.” Hicks v. Baines, 593 F.3d 159, 165 (2d Cir. 2010).
Proof of causation, the final element of a prima facie retaliation claim, “can
be shown either ‘(1) indirectly, by showing that the protected activity was followed
closely by discriminatory treatment, or through other circumstantial evidence such
as disparate treatment of fellow employees who engaged in similar conduct; or (2)
directly, through evidence of retaliatory animus directed against the plaintiff by the
defendant.’” Littlejohn v. City of New York, 795 F.3d 297, 319 (2d Cir. 2015)
(quoting Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000)). The
12
protected activity must have been the “but-for” cause of the retaliation; that is,
there must be “proof that the unlawful retaliation would not have occurred in the
absence of the alleged wrongful action or actions of the employer.” Univ. of Texas
Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013). “However, ‘but-for’ causation
does not require proof that retaliation was the only cause of the employer's action,
but only that the adverse action would not have occurred in the absence of the
retaliatory motive.” Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 846 (2d Cir.
2013).
“Once the plaintiff has established a prima facie showing of retaliation, the
burden shifts to the employer to articulate some legitimate, non-retaliatory reason
for the employment action.” Id. at 845. “[A]fter the defendant has articulated a
non-retaliatory reason for the employment action, the presumption of retaliation
arising from the establishment of the prima facie case drops from the picture. The
plaintiff must then come forward with [evidence that the proffered] non-retaliatory
reason is a mere pretext for retaliation.” Id. (citation omitted). “The plaintiff must
produce not simply ‘some’ evidence, but sufficient evidence to support a rational
finding that the legitimate, non-discriminatory reasons proffered by the defendant
were false, and that more likely than not discrimination was the real reason7 for the
employment action.” Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000)
(internal quotation marks and alterations omitted).
7
Although an employee need only establish a “good faith, reasonable belief” that an employment practice violates
Title VII to make her complaint of that practice a protected activity, see Reed v. A.W. Lawrence & Co., 95 F.3d
1170, 1178 (2d Cir. 1996), a more demanding standard unrelated to the employee’s beliefs applies to rebutting an
employer’s proffered non-retaliatory reason for an action taken following a protected activity.
13
III.
DISCUSSION
A.
Events Relevant To This Claim
In order to bring a civil action for Title VII retaliation, the allegedly
retaliatory events must have occurred within 300 days of an administrative charge.
The administrative charge in this case is plaintiff’s April 20, 2012 DHR Complaint,
and thus any events that occurred before June 26, 2011 are not considered.
Plaintiff was on medical leave from March 2011 to January 2012, and all of the
allegedly retaliatory acts not extinguished by the June 26, 2011 cutoff occurred
after her return.
Between plaintiff’s January 2012 return to work and her April 2012 DHR
Complaint, plaintiff’s schedule was changed, the lunch break policy was changed,
plaintiff’s supervisors discussed the use of red ink in patient charts and the
investigation into whether plaintiff had incorrectly filled out paper work began and
reached a preliminary determination that she had not exercised sound judgment
and should receive a Notice of Discipline. Defendant argues that none of these
events preceding plaintiff’s April 2012 DHR Complaint are relevant to her
remaining retaliation claims. In defendant’s view, because all of plaintiff’s claims
based on events that occurred prior to June 11, 2011 have been dismissed, and
because plaintiff’s January 2012 union grievance is not a protected activity, there
can be no retaliation claims for events that occurred prior to the first instance of
protected activity that took place after June 11, 2011.
14
Defendant is correct that plaintiff’s January 2012 union grievance was not
protected activity and cannot provide the basis for a retaliation claim. A protected
activity must be one that opposes a “practice made an unlawful employment
practice by [Title VII].” 42 U.S.C. § 2000e-3(a). Plaintiff’s grievance concerned a
change in work schedule and had no relationship to unlawful conduct under Title
VII. (See ECF No. 63, Exh. H.) The grievance makes no mention of any
discrimination; it is not a protected activity. See Melie v. EVCI/TCI Coll. Admin.,
374 F. App’x 150, 153 n.* (2d Cir. 2010) (“[U]nion grievances that do not complain of
discrimination do not constitute a protected activity.”)
It does not, however, follow that all events that occurred after June 11, 2011
– but prior to plaintiff’s April 2012 DHR complaint – are irrelevant. In this regard,
the Court distinguishes between plaintiff’s March 2011 internal complaint of gender
discrimination, which was a protected activity but occurred more than 300 days
before the filing of her suit, and the events alleged to have occurred in retaliation
for that activity. Thus, although the March 2011 internal complaint occurred before
the June 2011 cut-off date for plaintiff’s retaliation claims, any acts of retaliation
that stemmed from that complaint and occurred after the June 2011 cut-off date are
actionable. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110 (2002) (“A
discrete retaliatory or discriminatory act ‘occurred’ on the day that it ‘happened.’”);
Bowen-Hooks v. City of New York, 13 F. Supp. 3d 179, 223 n.27 (E.D.N.Y. 2014)
(“[F]or purposes of her Title VII retaliation claim, the statute of limitations begins
15
to run from the time of Defendants' allegedly retaliatory activity and not from the
time of the Plaintiff's protected activity.”).
The Court therefore considers all evidence of allegedly retaliatory acts after
June 11, 2011. The next issue is whether there is a triable issue of fact as to
whether these acts were caused by a retaliatory motive. To this end, the Court
examines both the circumstantial evidence connecting the acts and plaintiff’s
protected activities and defendant’s proffered non-retaliatory explanations for its
actions.
B.
Plaintiff Has Not Created A Triable Issue Of Fact As To Causation For
Most Of The Allegedly Retaliatory Acts.
In order to make out a prima facie case of retaliation, plaintiff must provide
proof “that the adverse action8 would not have occurred in the absence of the
retaliatory motive.” Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 846 (2d Cir.
2013). That is, plaintiff must put forward a triable issue on the question of whether
the action was motivated by, caused by, or the result of a desire by defendant to
retaliate for specific protected activities. She can do so either by direct proof of
defendant’s retaliatory animus or by indirect circumstantial proof, such as a close
temporal connection between the protected activity and the allegedly retaliatory act
or disparate treatment of fellow employees who engaged in similar conduct. See
Littlejohn v. City of New York, 795 F.3d 297, 319 (2d Cir. 2015). In this case,
8
The Court assumes, for the purposes of this motion and without resolving the question, that the allegedly
retaliatory acts plaintiff identifies amount to materially adverse actions that have injured or harmed plaintiff. See
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 69 (2006). The Court notes that it has serious doubts that
the alleged conduct, even in the aggregate, constitute materially adverse actions.
16
plaintiff has not raised a triable issue on this question as to most of the allegedly
retaliatory acts.
First, plaintiff has not pointed to any direct evidence that defendant acted
with retaliatory animus. During her deposition, plaintiff stated that no supervisor,
investigator, or other author of an allegedly retaliatory act ever told her that the act
related to her complaints or lawsuit. (Def.’s 56.1 ¶¶ 90, 167, 212; Forest Tr. at
55:20-56:10, 77:23-78:5, 82:22-83:8, 98:21-99:4.) Indeed, plaintiff has not brought
forth any admissible evidence that her employer exhibited a direct negative reaction
of any kind to her complaints of discrimination. Cf. Mandell v. Cnty. of Suffolk, 316
F.3d 368, 383 (2d Cir. 2003) (employer’s statement that employee who filed a
complaint “would have to learn to keep his mouth shut” was direct evidence of
retaliatory animus).
In addition, plaintiff has also failed to put forward circumstantial proof that
retaliation was a but-for cause of the complained-of acts. Comparing the timing of
plaintiff’s protected activities with the timing of the acts does not create an
inference of retaliatory motive. Definitionally, any retaliatory acts that occurred
after June 11, 2011 but before plaintiff’s April 2012 DHR Complaint would have
had to have been (at most) retaliation for plaintiff’s March 2011 internal complaint.
These acts include the schedule change in January 2012, the change in lunch policy
in early 2012, increased scrutiny of plaintiff’s work in and after March 2012, and
the red ink issue in March 2012, all of which occurred more than nine months after
the filing of the complaint. Even if these acts can be considered objectively injurious
17
or harmful, which is not at all clear, see Tepperwien v. Entergy Nuclear Operations,
Inc., 663 F.3d 556, 570 (2d Cir. 2011) (“[C]riticism of an employee (which is part of
training and necessary to allow employees to develop, improve and avoid discipline)
is not an adverse employment action.” (quoting Weeks v. N.Y. State (Div. of Parole),
273 F.3d 76, 86 (2d Cir. 2001))), they do not closely follow the protected activity in a
manner that provides indirect proof that retaliatory animus was a but-for cause.
Although the Second Circuit “has not drawn a bright line defining, for the purposes
of a prima facie case, the outer limits beyond which a temporal relationship is too
attenuated to establish causation,” Gorzynski v. JetBlue Airways Corp., 596 F.3d
93, 110 (2d Cir. 2010), the more than nine months that passed between the
complaint and these actions indicates that the temporal relationship cannot,
without more, establish causation. See Yarde v. Good Samaritan Hosp., 360 F.
Supp. 2d 552, 562 (S.D.N.Y. 2005) (“Six months between protected activity and
discharge is well beyond the time frame for inferring retaliatory causation.”).
There is a closer temporal relationship between plaintiff’s April 2012 DHR
Complaint and some of the allegedly retaliatory acts that occurred thereafter, but
not one that can give rise to a reasonable inference of causation. The May 5, 2012
Notice of Discipline for filling out and signing inaccurate forms was issued shortly
after plaintiff’s April 2012 DHR Complaint, but it was the result of a review process
that had begun on March 1, 2012, prior to the April complaint. (Def.’s ¶ 172.)
Therefore, the fact that the Notice closely followed the Complaint is not
circumstantial evidence of retaliatory causation in this case. See Clark Cnty. Sch.
18
Dist. v. Breeden, 532 U.S. 268, 272 (2001) (“Employers need not suspend previously
planned transfers upon discovering that a Title VII suit has been filed, and their
proceeding along lines previously contemplated, though not yet definitively
determined, is no evidence whatever of causality.”); Slattery v. Swiss Reins. Am.
Corp., 248 F.3d 87, 95 (2d Cir. 2001) (“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.”). The
same logic applies to the August 2013 agency-level hearing regarding these forms:
even if the five-and-one-half months that passed between plaintiff’s latest protected
activity, the March 2013 filing of this lawsuit, and the hearing were close enough to
suggest a temporal relationship, the fact that the hearing was the extension of a
previous proceeding defeats any such inference.
In contrast to the acts discussed above, certain allegedly retaliatory acts are
more proximate. The acts in June 2012, specifically plaintiff’s assignment of 13
weeks of medical education classes and alleged denial of a requested scheduling
adjustment, followed the April DHR Complaint by approximately two months,
which could suggest a temporal relationship. The August 31, 2012 investigation
into a discrepancy in the syringe count followed the April complaint by more than
four months, a significant period of time but perhaps not obviously too attenuated to
indicate causation. And plaintiff’s May 29, 2013 supervisory counseling
memorandum was issued less than three months after plaintiff filed this lawsuit on
March 14, 2013. However, as discussed below, for all of these incidents defendant
19
has offered legitimate, non-retaliatory explanations for its actions which plaintiff
has failed to even weakly rebut. “The 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, but without more, such temporal proximity is
insufficient to satisfy appellant's burden to bring forward some evidence of pretext.”
El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir. 2010).
Other avenues of indirectly proving retaliatory motive are similarly
unavailing. It is undisputed that many of the acts plaintiff labels retaliatory
applied not just to plaintiff but also to her similarly situated coworkers. Smith and
Depew discussed policies relating to charged time for lunch, red ink in patient
charts, and syringe counts with the entire nursing staff. (Id. ¶¶ 136, 138, 163, 233.)
Plaintiff testified that the lunch policy “was a blanket policy [that] applied to
everyone.” (Forest Tr. at 52:9-10.) After plaintiff’s loud argument with Parks in
April 2013 both nurses met with supervisors to discuss the incident, were told that
their behavior violated policies, and were offered the chance to change work
schedules and attend further trainings. (Def.’s 56.1 ¶¶ 246-53.) This similar
treatment of similarly situated employees does not provide any indication that
defendant’s acts were motivated by retaliation.
C.
Plaintiff Has Entirely Failed To Rebut Defendant’s Non-Retaliatory
Explanations.
Even if plaintiff had successfully made out a prima facie case for some acts of
alleged retaliation, defendant is able to eliminate the presumption of retaliation by
articulating non-retaliatory reasons for its actions. Zann Kwan v. Andalex Grp.
20
LLC, 737 F.3d 834, 845 (2d Cir. 2013). The burden then shifts to plaintiff to bring
forth evidence that defendant’s purported reasons are mere pretext “by
demonstrating weaknesses, implausibilities, inconsistencies, or contradictions in
the employer’s proffered legitimate, nonretaliatory reasons for its action.” Id. at
846. Plaintiff’s burden at this stage is to proffer admissible evidence from which a
rational trier of fact could conclude that retaliation was more likely than not the
true motivation of defendant’s acts. See Weinstock v. Columbia Univ., 224 F.3d 33,
42 (2d Cir. 2000).
As discussed above, there are certain acts that were close enough in time to
plaintiff’s protected activities to potentially indirectly prove a causal relationship:
the assignment of 13 weeks of medical education classes, the denial of a scheduling
request, the syringe investigation, and the counseling memorandum. However,
even assuming these acts separately or together could constitute materially adverse
actions, defendant has furnished a legitimate, non-retaliatory explanation for each
of them to which plaintiff has offered no response.
Defendant has adduced evidence that plaintiff was assigned the same
number of classes as her peers and that any scheduling requests were handled
according to department policy. (Def.’s 56.1 ¶¶ 205, 216.) Defendant has further
proffered uncontested evidence that plaintiff did not ultimately teach all of the
classes she was assigned and that class start and stop dates were regulated by a
coordinator who defendant has never alleged was even aware of her protected
activities. (Id. ¶¶ 207-10; Pl.’s 56.1 ¶¶ 203, 207-10.) And, as defendant points out,
21
plaintiff was unable to identify the requested schedule change she alleges she was
denied during her deposition, an omission she has not rectified with any further
evidence at this stage. (ECF No. 65 at 19; Forest Tr. at 87:8-88:23.) In light of
defendant’s unchallenged explanations, the mere fact that these incidents occurred
two months after plaintiff filed her DHR Complaint does not provide a basis from
which a reasonable jury could conclude that defendant retaliated against plaintiff.
See El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir. 2010).
Plaintiff testified that she had in fact failed to document her use of a syringe
prior to Depew’s initiation of an investigation into the syringe count. (Forest Tr. at
94:4-21, 97:2-6.) She does not contest defendant’s explanation that there are
“numerous reasons that syringes and sharps must be accounted for in any medical
setting (such as to prevent the spread of blood borne disease when a syringe is
improperly discarded)” and “especially in a maximum security correctional facility,
[where] a missing syringe could pose a serious threat, as it could be used as a
weapon.” (ECF No. 65 at 11, 20.) Again, plaintiff’s failure to provide any evidence
that defendant’s explanation is a mere pretext for retaliation means that she has
not identified a triable issue as to whether defendant retaliated against her in this
incident. In any event, as discussed above, this incident did not result in an adverse
action directed toward plaintiff but instead to an all-staff reminder of policy.
Similarly, plaintiff does not dispute that the May 29, 2013 supervisory
counseling memorandum was prompted by a loud, public argument between her
and her co-worker Parks in April 2013. (Def.’s 56.1 ¶ 244; Pl.’s 56.1 ¶¶ 244, 252-57.)
22
Plaintiff has not offered any evidence suggesting that this counseling was in fact
prompted by a desire to retaliate against her for filing this suit. Furthermore, the
fact that both plaintiff and Parks received the same discipline, with Parks’s
memorandum containing stronger language indicating that his “ongoing
disrespectful, hostile, threatening, intimidating presentation will not be tolerated”
further establishes the legitimacy of defendant’s proffered explanation. (Pl.’s 56.1 ¶
257.)
Where plaintiff has provided some evidence that she was treated differently
from other nurses she has also failed entirely to rebut defendant’s proffered nonretaliatory explanations. Plaintiff notes that only she was issued a Notice of
Discipline in connection with forms that both she and Parks filled out, but she does
not contest that Parks only filled out the identifying information on the forms, not
their faulty substance. (Def.’s 56.1 ¶¶ 174-80; Pl.’s 56.1 ¶ 363.) Plaintiff also does
not contest defendant’s explanation that “[f]alse entries in a medical record are a
serious matter in any medical setting,” and that only her contributions and not
Parks’ were “false.” (ECF No. 65 at 18.) Thus, even if plaintiff had been able to
make out a prima facie case that receiving the Notice of Discipline was a retaliatory
act, her failure to provide any evidence of pretext would prevent a reasonable jury
from finding that defendant was motivated by retaliatory animus.
Considering all of the evidence in the light most favorable to plaintiff, a
reasonable jury could not conclude that she was materially injured or harmed by
actions that defendant would not have taken had it not been motivated to retaliate
23
for her discrimination complaints. Plaintiff has therefore failed to create a triable
issue of fact that prevents defendant from being entitled to judgment as a matter of
law.
IV.
CONCLUSION
For the reasons stated above, defendant’s motion for summary judgment is
GRANTED. The Clerk of Court is directed to terminate the motion at Docket No.
59 and to terminate the action.
SO ORDERED.
Dated:
New York, New York
November 10, 2015
______________________________________
KATHERINE B. FORREST
United States District Judge
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