Goldson v. Kral Clerkin Redmond Ryan Perry & Van Etten, LLP
MEMORANDUM DECISION AND ORDER: Adopting REPORT AND RECOMMENDATIONS for 102 Report and Recommendations. Magistrate Judge Maas' Report and Recommendation is adopted. Defendant's motion for summary judgment as to Plaintiff's Title VII and ADEA discrimination claims is GRANTED. Defendant's motion for summary judgment on Plaintiff's retaliation claim is DENIED. The Clerk of Court is directed to close the motion at ECF No. 84. SO ORDERED.Motions terminated: 84 MOTION for Summary Judgment filed by Kral Clerkin Redmond Ryan Perry & Van Etten, LLP. (Signed by Judge George B. Daniels on 3/24/2016) (ama)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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KRAL, CLERKIN, REDMOND, RYAN, PERRY
& VAN ETTEN, LLP,
13 Civ. 2747 (GBD) (FM)
GEORGE B. DANIELS, United States District Judge:
Pro se plaintiff Marcia Goldson ("Plaintiff') brings this action against Kral, Clerkin,
Redmond, Ryan, Perry & Van Etten, LLP ("Defendant").
(See Am. Compl., ECF No. 18.)
According to Plaintiff, Defendant, her former employer, discriminated and retaliated against her
in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and in violation
of the Age Discrimination in Employment Act of 1967 ("ADEA''), 29 U.S.C. § 621, et seq., 1
because she is an African American female who was fifty-two years old at the time of her
termination. (Am. Compl., at 3-4.) Plaintiff, who worked as a paralegal for the defendant law
firm from March 2003 until her January 22, 2013 termination, argues that Defendant subjected her
to retaliation and disparate treatment because of her race, national origin, gender, and age. (See
Plaintiff filed Charges of Discrimination with both the New York State Division of Human
Rights and the Equal Employment Opportunity Commission, complaining of discrimination based
This Court previously issued an order adopting Magistrate Judge Maas' recommendation to dismiss
Plaintifrs New York City and New York State Human Rights Laws claims, leaving only Plaintiff's Title
VII and ADEA claims. (August 13, 2014 Order, ECF No. 46.)
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on her race, color, national origin, and gender on April 27, 2012. (See Am. Compl., at 14 ("First
This matter was referred to Magistrate Judge Frank Maas on May 7, 2013. (ECF No. 8.)
Defendant moved for summary judgment pursuant to Federal Rule of Civil Procedure Rule 56 on
April 15, 2015. (See ECF No. 84). Before this Court is Magistrate Judge Maas' February 22,
2016 Report and Recommendation ("Report," ECF No. 102), recommending that Defendant's
motion for summary judgment be granted as to Plaintiff's ADEA and Title VII discrimination
claims, and denied as to Plaintiff's retaliation claim. 2 (Report at 29.) This Court adopts those
I. LEGAL ST AND ARD
This Court may accept, reject, or modify, in whole or in part, the findings set forth in the
Report. 28 U.S.C. § 636(b)(l)(C). When there are objections to the Report, the Court must make
a de nova determination of those portions of the Report to which objections are made. Id.; see also
Rivera v. Barnhart, 423 F. Supp. 2d 271, 273 (S.D.N.Y. 2006). The district judge may also receive
further evidence or recommit the matter to the magistrate judge with instructions. See Fed. R. Civ.
P. 72(b); 28 U.S.C. § 636(b)(l)(C). The Court need not conduct a de nova hearing on the matter.
See United States v. Raddatz, 447 U.S. 667, 675-76 (1980). Rather, it is sufficient that the Court
"arrive at its own, independent conclusion" regarding those portions of the Report to which
objections were made. Nelson v. Smith, 618 F. Supp. 1186, 1189-90 (S.D.N.Y. 1985) (quoting
Hernandez v. Estelle, 711F.2d619, 620 (5th Cir. 1983) (internal quotation marks omitted)). When
no party files objections to a Report, the Court may adopt the Report if "there is no clear error on
The relevant procedural and factual background is set forth in greater detail in the Report, and is
incorporated herein. (See Report, at 2-10.)
the face of the record." Adee Motor Cars, LLC v. Amato, 388 F. Supp. 2d 250, 253 (S.D.N.Y.
2005) (quoting Nelson, 618 F. Supp. at 1189).
Magistrate Judge Maas advised the parties that failure to file timely objections to the Report
would constitute a waiver of those objections on appeal. (Report at 30); see also 28 U.S.C. §
636(b)(l)(C); Fed. R. Civ. P. 72(b). Defendant filed timely objections to the Report (Def. 's Obj.,
ECF No. 104.) As of the date of this Order, Plaintiff neither responded to Defendant's objections
nor filed her own objections to the Report. This Court has considered the issues raised in these
objections and reviews de nova the objected-to portions of the Report.
Summary judgment is appropriate where the record before the court establishes 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). A genuine dispute as to a material fact exists "if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). In determining whether a fact is genuinely disputed, the district
court "is not to weigh the evidence but is instead required to view the evidence in the light most
favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of
that party, and to eschew credibility assessments." Weyant v. Okst, 101 F.3d 845, 854 (2d Cir.
1996); see also Marmol v. Costco Wholesale Corp., 364 F.3d 54, 56 n.1 (2d Cir. 2004) ("[A]t the
summary judgment stage the judge's function is not himself to weigh the evidence and determine
the truth of the matter but to determine whether there is a genuine issue for trial." (internal
quotation marks omitted)).
However, to show a genuine dispute of material fact, the nonmoving party must provide
"hard evidence," D'Amico v. City of NY., 132 F.3d 145, 149 (2d Cir. 1998), "from which a
reasonable inference in [her] favor may be drawn," Binder & Binder PC v. Barnhart, 481 F.3d
141, 148 (2d Cir. 2007) (internal quotation marks omitted). "[E]ven in the discrimination context,
a plaintiff must provide more than conclusory allegations of discrimination to defeat a motion for
summary judgment." Schwapp v. Town ofAvon, 118 F.3d 106, 110 (2d Cir. 1997) (internal citation
"To satisfy Rule 56(e), affidavits must be based upon 'concrete particulars,' not
To the extent that these affidavits contain bald assertions and legal
conclusions-for example, that [a co-worker] 'was always making racial slurs about minorities,'
and that [the plaintiff] 'was working in a hostile or abusive working environment'-the district
court [can] properly refuse[ ] to rely on them." Schwapp, 118 F.3d at 111 (internal citations
omitted); accord Hicks v. Baines, 593 F.3d 159, 167 (2d Cir. 2010) ("[A] party cannot create a
triable issue of fact merely by stating in an affidavit the very proposition they are trying to prove.")
(internal citations omitted).
Prose submissions are read liberally and interpreted to "raise the strongest arguments that
they suggest." Burgos v. Hopkins, 14 F. 3d 787, 790 (2d Cir. 1994) (internal citation omitted).
However, "[p ]roceeding pro se does not otherwise relieve a litigant of the usual requirements of
summary judgment, and a prose party's bald assertions unsupported by evidence, are insufficient
to overcome a motion for summary judgment." Rodriguez v. Hahn, 209 F. Supp. 2d 344, 348
(S.D.N.Y. 2002) (internal citation omitted).
11. TITLE VII AND ADEA CLAIMS
Title VII of the Civil Rights Act of 1964 forbids employment discrimination against any
individual based on that individual's "race, color, religion, sex, or national origin." Burlington N.
& Santa Fe Ry. Co. v. White, 548 U.S. 53, 56 (2006) (citing 42 U.S.C. § 2000e-2(a)). A plaintiff
may base a discrimination claim on two types of prohibited acts: (1) the employer's disparate
treatment, or (2) the employer's maintenance of a hostile work environment. See Littlejohn v. City
ofN. Y, 795 F .3d 297, 312, 320 (2d Cir. 2015). Title VII also provides that an employer may not
retaliate against or punish an employee's opposition to employment discrimination. See Univ. of
Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2525 (2013) (citing Title VII,§
Similarly, the ADEA forbids employers from discriminating in hiring, discharge, or the
setting of "compensation, terms, conditions, or privileges of employment" by reason of the age of
an employee. 29 U.S.C. § 623(a)(l); see also Hazen Paper Co. v. Biggins, 507 U.S. 604, 609
(1993). The ADEA's protection extends only to those individuals who, like Plaintiff, are over 40
years old. 29 U.S.C. § 63l(a); see Raskin v. Wyatt Co., 125 F.3d 55, 60 (2d Cir. 1997). Claims
under the ADEA receive the same analysis as claims under Title VII. See, e.g., Bucalo v. Shelter
Island Union Free Sch. Dist., 691F.3d119 (2d Cir. 2012); Lightfoot v. Union Carbide Corp., 110
F .3d 898, 913 (2d Cir. 1997).
A. DISPARATE TREATMENT
To defeat a motion for summary judgment under either statute, a plaintiff must first
establish a prima facie case of discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506
(1993). To establish a prima facie case of discrimination under Title VII and the ADEA, a plaintiff
must show (1) membership in a protected class, (2) qualification for the position she held, (3) an
adverse employment action, 3 and (4) that the adverse employment action occurred under
circumstances that give rise to an inference of discrimination. See Ruiz v. Cnty. of Rockland, 609
The Report properly found that from the list of Plaintiffs alleged adverse employment actions, only the
incidents occurring after July 2, 2011, three hundred days prior to Plaintiffs filing of her first discrimination
charge, are timely. See Nat 'I R.R. Passenger Corp. v. Morgan, 536 U.S. 10 I, 113 (2002). The Report also
properly found that Plaintiff had failed to show that any of the pre-July 2, 2011 adverse employment actions
were part of a continuing policy of discrimination at the defendant law firm, so as to fall under the
"continuing violation" exception in discrimination cases. (See Report, at 17 .) See also Lightfoot, 110 F.3d
at 907 (internal citations omitted) (defining "continuing violation" exception).
F.3d 486, 491-92 (2d Cir. 2010). The Report properly found that Plaintiff failed to establish a
prima facie case of discrimination based on her age, race, or gender. (Report, at 17-24.)
The parties do not dispute that Plaintiff has alleged the first three elements of a prima facie
case of discrimination. First, Plaintiff is a member of at least three protected classes as an African
American female of Jamaican national origin under Title VII. Ruiz, 609 F.3d at 491. She was
over forty at the time the allegedly adverse employment actions occurred for ADEA purpose. (See
Am. Compl., at 3.) As to the second element, it is undisputed that Plaintiff was qualified as a
paralegal. (See Report, at 18.) Third, the Report found that Plaintiff provided proof oftwo 4 timely
adverse employment actions. (Report, at 18-21.)
Specifically, Defendant reduced her job
responsibilities on August 16, 2012, (id. at 6), and Plaintiff was terminated on January 22, 2013.
(Id. at 7); see Ruiz, 609 F.3d at 491.
With regard to Plaintiffs age discrimination claim, Magistrate Judge Maas properly found
that Plaintiff proffered no facts supporting her contention that the adverse employment actions
occurred under circumstances that gave rise to an inference of age discrimination. Ruiz, 609 F.3d
at 491; (see Report, at 17). Plaintiff, a paralegal, did not provide any evidence suggesting that
Defendant's decision to hire a younger male for a billing clerk and law clerk position with
significantly different duties and responsibilities sometime between 2012 and 2013 was motivated
by age. (Id. at 18.) Nor did Plaintiff provide any evidence that her age was a but-for cause of any
Plaintiff also contended that Defendant failed to give her a raise or pay her commensurately with other
employees during the justiciable time period, (Report, at 16), and that Defendant failed to provide her with
a written job reference, even though Plaintiff requested a reference twice over a ten-month period. (Id. at
5, 6.) The Report properly found that for the purposes of disparate treatment analysis, Plaintiff did not meet
her burden of proof to show that these incidents constitute adverse employment actions. (See id., at 19, 21
of the adverse employment actions she has alleged. (Id. (citing Sklar v. N. Y Life Ins. Co., No. 00
Civ. 2254, 2001WL984724, at *5 (S.D.N.Y. Aug. 27, 2001 (finding that "mere fact" of plaintiffs
age (fifty-two) does not raise inference of age discrimination)).)
Neither party objected to the Report's recommendation to grant summary judgment to
Defendant on Plaintiffs ADEA discrimination claim. Having found no clear error, this Court
accepts that recommendation.
2. TITLE VII
The Report also properly found that Plaintiff failed to establish that the adverse
employment actions occurred under circumstances that give rise to an inference of discrimination
on the basis of her race, color, gender, or national origin. See Ruiz, 609 F.3d at 491.
offered no evidence to support her contentions that her change in job responsibilities 5 and
termination were motivated by unlawful discrimination.
(See Report, at 22.)
deposition, Plaintiff could not name witnesses who could corroborate her discrimination claims.
(See id.) Plaintiffs sole fact on which she hangs her case of unlawful discrimination is that she is
"the only Black female employee of Jamaican ancestry" at the defendant Firm. (See Report, at
Without more contextual information about how she came to be the only Black female
employee of Jamaican ancestry working for Defendant, a rational jury could not find in Plaintiffs
favor regarding an inference of discrimination. (See id. (citing Risco v. McHugh, 868 F. Supp. 2d
75, 105 (S.D.N.Y. 2012) (internal quotation marks and citations omitted)).)
The Report did not specifically find that Plaintiffs change in duties constituted an adverse employment action
cognizable under Title VII, stating that the change "may rise to the level of an adverse employment action." (See
Report, at 21.) The Report reasoned that the reduction in Plaintiffs billable tasks may well have led to her later
termination. (Id. at 20-21.) The Report also notes that Defendant does not dispute Plaintiffs assertion that the
reorganization reduced her billable hours. (See id. at 20). Indeed, Defendant only addresses Plaintiffs termination,
contending that Plaintiff was terminated because she generated less revenue than the only other paralegal at the firm.
(See Def.'s Mem. at 13.)
Other than this fact, the Report properly concluded that Plaintiff merely proffered
"conclusory statements that [Defendant's] actions were motivated by animus toward her race,
color, gender, or national origin." (Report, at 21.) As this Circuit has recognized, "a party cannot
create a triable issue of fact merely by stating in an affidavit the very proposition they are trying
to prove." Hicks, 593 F.3d at 167. "To the extent that [Plaintiffs papers] contain bald assertions
and legal conclusions[,] ... the district court [can] properly refuse to rely on them." Schwapp,
118 F.3d at 111 (citations omitted). Magistrate Judge Maas found that Plaintiff failed to establish
a prima facie case of unlawful discrimination under Title VII, and accordingly recommended that
this Court grant Defendant's motion for summary judgment as to Plaintiffs Title VII
discrimination claim. (Report, at 24, 28.)
Neither party objected to the Report's recommendation. Having found no clear error, this
Court accepts that recommendation.
Title VII and the ADEA prohibits an employer from retaliating against employees for
opposing any practice of unlawful employment discrimination. See Littlejohn, 795 F.3d at 315
(citing 42 U.S.C. § 2000e-3(a)). Retaliation claims, like disparate treatment claims, are analyzed
using the three-part burden-shifting test. See id. To demonstrate a prima facie case of retaliation,
a plaintiff must submit sufficient admissible evidence to allow a trier of fact to find: (i)
conduct by the plaintiff that is protected activity ... ; (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 Cty. Sheriff's Dep 't, 760 F.3d 139, 145 (2d Cir. 2014) (internal citation omitted).
Once a plaintiff establishes her prima facie case, the burden of production shifts to the
employer to put forth evidence of a non-retaliatory rationale for the adverse action. See id. (citing
Holt v. KMI-Continental, 95 F.3d 123, 130 (2d Cir. 1996)). Once the defendant has done so, the
plaintiff may prevail by demonstrating that the stated rationale is pretextual. Jute v. Hamilton
Sundstrand Corp., 420 F.3d 166, 173, 179-80 (2d Cir. 2005). The employee at all times bears the
burden of persuasion to show a retaliatory motive. Cosgrove v. Sears, Roebuck & Co., 9 F.3d
The parties do not dispute the first three elements of Plaintiff's prima facie case of
retaliation. First, Plaintiff clearly engaged in protected activity when she dually filed her EEOC
and Division of Human Rights charge of discrimination on April 27, 2012. (Def.'s Rule 56.1
Statement ("Def.'s 56.1 Stmt."), ECF No. 86, at~ 17.) Magistrate Judge Maas properly found that
both Plaintiff's termination and her reduction in responsibilities constituted an adverse
employment action. (See Report, at 28 (referencing Report, at 21 ("The reorganization may well
have created a situation in which Goldson became less valuable to the firm than [the other
paralegal], and therefore, vulnerable to termination ... [T]he reorganization of her responsibilities
may rise to the level of an adverse employment action.")).)
Defendant first objects to the Report's finding that Plaintiff was able to demonstrate
causation because of the temporal proximity between her April 27, 2012 filing of the charge of
discrimination and the August 16, 2012 change in her job duties. (Def.' s Objs., at 1; Report, at
29.) While the Report concluded that the nine months between Plaintiff's protected activity and
her January 2013 termination "would likely pose a temporal proximity hurdle," the Report also
concluded that three and a half months (at most) between the protected activity and the change in
Plaintiff's responsibilities is sufficiently close in time as to demonstrate causation as part of the
prima facie case. (Report, at 29.)
Furthermore, the Report accurately noted that Defendant had
failed to contest the causal connection between these two events in its moving papers, which only
focused on the causal relationship between the protected activity and Plaintiffs termination. (Id.)
Defendant further contends that when, as here, "more than three months have passed
between a protected activity and an allegedly retaliatory response, the Second Circuit has deemed
the evidence insufficient to raise an issue of fact concerning causation." (Def.'s Objs., at 4 (citing
Jiminez v. City ofN. Y, 605 F. Supp. 2d 485, 528 (S.D.N.Y. 2009)).) However, the Second Circuit
"has not drawn a bright line defining, for the purposes of a prima facie case [of retaliation], 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). Indeed, this Circuit has held
that periods as long as eight months have been sufficiently close in time to establish causation.
See Grant v. Bethlehem Steel Corp., 622 F.2d 43, 45--46 (2d Cir. 1980) (eight-month gap between
EEOC complaint and retaliatory action suggested a causal relationship); see also Gorman-Bakos
v. Cornell Co-op Extension ofSchenectady Cty., 252 F.3d 545, 555 (2d Cir. 2001) (noting that five
months was sufficiently proximate in time to demonstrate causation). Furthermore, at the prima
facie stage, "temporal proximity [between the protected activity and the adverse action] alone may
still be sufficient" to show causation. See Smith v. Town of Hempstead Dept. ofSanitation, 982 F.
Supp. 2d 225, 232 (E.D.N.Y. 2013). This Court finds that the Report properly held that Plaintiff
made out a prima facie case of retaliation. 6
Defendant also appears to argue that apart from timing, the Reorganization Email had no "connection
whatsoever to the Plaintiffs filing of her Charge," (Objs., at 4), and contest "Plaintiffs reliance on the
mere existence of the Reorganization Email to bolster her temporal proximity argument to establish
causation." (Id. at 5.) This argument is conclusory and without merit, as Plaintiffs burden at the prima
facie :stctge is de minimis. Tomassi v. Insignia Fin. Grp., Inc., 478 F.3d 111, 114 (2d Cir. 2007).
Furthermore, "[a] showing of causation 'tend[ s] to collapse as a practical matter under the McDonnell
Douglas framework' with a showing of pretext," as Plaintiff has made here. Orlando v. BNP Paribas N.
Defendant next contends that the Report's finding that Plaintiff has sufficiently established
pretext as to her retaliation claim is improper because the Report found that Plaintiff failed to
establish pretext as to her Title VII claim. However, as courts in this Circuit have routinely found
that a plaintiff's retaliation claim may proceed while granting summary judgment on a
discrimination claim. An adverse employment action that may not be discriminatory may still be
retaliatory, and therefore unlawful.
See, e.g., Orlando, 2015 WL 6387531, at *12; Chan v.
Donahoe, 63 F. Supp. 3d 271, 300 (E.D.N.Y. 2014); Ramos v. Marriott Int'!, Inc., 134 F. Supp.
2d 328, 351 (S.D.N.Y. 2001); Kornblatt v. Beth Israel Med Ctr., No. 97 CIV. 8630, 1998 WL
483457, at *4 (S.D.N.Y. Aug. 17, 1998).
Here, Defendant claims that the purpose of the Reorganization Email was "to limit firm
expenses" and "clarify to attorneys and non-attorney staff the parameters of paralegal and staff
responsibilities," (Objs., at 2). There exists, however, a genuine issue of material fact as to pretext,
as the Report found. (Report, at 29.) "Plaintiffs may establish pretext and thereby successfully
oppose summary judgment, ... by demonstrat[ing] weaknesses, implausibilities, inconsistencies,
or contradictions in the employer's proffered legitimate, nondiscriminatory reason for its action."
Ramos, 134 F. Supp. 2d at 343 (internal quotation marks and citations omitted). Here, Plaintiff
notes that Defendant's managing partner and the author of the Reorganization Email, Gerald Ryan,
never responded to her email inquiries about her new responsibilities. (Pl.' s Aff. in Opp. to Def.' s
Mot. for Summ. J. ("Pl.'s Aff."), ECF No. 94,
5; Pl.'s Aff., Ex. C, at 1.) Defendant claims
that Plaintiff's termination was "part of a broad cost reduction plan in an effort to improve the
Am., Inc., No. 14 ClV. 4102, 2015 WL 638753 l, at *13 (S.D.N.Y. Oct. 22, 2015) (internal quotation
marks and citation omitted).
firm's profitability." (Def.'s Mem., at 13.)
However, Defendant fails to address how the
Reorganization Email was part of that effort, or if that effort was even in place in August 2012,
when Ryan sent the e-mail. Even if Defendant argued that the email was part of a firm-wide "costsaving" effort, (see Report, at 25 (citing Ryan Deel., ECF No. 87, at
9), Defendant has not
proffered any evidence showing that emails were sent about secretarial responsibilities or about
attorney responsibilities in the New York office. Nor does Defendant demonstrate how making a
salaried employee, such as Plaintiff, do less billable work, could save Defendant money. In fact,
reducing Plaintiffs billable hours would have saved a client money, but not Defendant. Taken
together, the circumstances raise an inference that there was no other purpose to the email that
applied only to Plaintiff than to set up a pretext for retaliatory motives. Therefore, Magistrate
Judge Maas properly recommended that Defendant's motion for summary judgment be denied as
to Plaintiff's retaliation claim. (See Report, at 30.)
Magistrate Judge Maas' Report and Recommendation is adopted. Defendant's motion for
summary judgment as to Plaintiff's Title VII and ADEA discrimination claims is GRANTED.
Defendant's motion for summary judgment on Plaintiff's retaliation claim is DENIED.
The Clerk of Court is directed to close the motion at ECF No. 84.
Dated: New York, New York
March 24, 2016
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