James v. Municipal Credit Union

Filing 49

MEMORANDUM AND OPINION re: 20 MOTION for Summary Judgment . filed by Municipal Credit Union. For the foregoing reasons, Defendant MCUs motion for summary judgment seeking dismissal of each of the claims asserted in Plaintiffs Amended Complaint is granted in its entirety. 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, and therefore in forma pauperis status is denied for thepurpose of appeal. See Coppedge v. U nited States, 369 U.S. 438, 444-45 (1962).This Memorandum Opinion and Order resolves docket entry number 20. The Clerk of Court is respectfully requested to enter judgment in Defendants favor and close this case. (Signed by Judge Laura Taylor Swain on 2/19/2016) (mt)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------x
SHECARA JAMES,
Plaintiff,
-v-

No. 13CV4568-LTS-KNF

MUNICIPAL CREDIT UNION,
Defendant.
-------------------------------------------------------x
MEMORANDUM OPINION AND ORDER
Pro se plaintiff Shecara James (“James” or “Plaintiff”) brings this action against
Municipal Credit Union (“MCU” or “Defendant”), asserting claims of unlawful discrimination,
retaliation and hostile work environment based on race, pursuant to Title VII of the Civil Rights
Act of 1964 (“Title VII”), and disability, pursuant to the Americans with Disabilities Act
(“ADA”).1 MCU has moved for summary judgment, seeking dismissal of all of Plaintiff’s
claims. The Court has jurisdiction of this action under 28 U.S.C. § 1331. The Court has
considered the parties’ submissions carefully.2 For the reasons stated below, MCU’s motion for
summary judgment is granted in its entirety.

1

Although Defendant MCU offers an argument seeking summary judgment with
respect to purported claims of negligence, MCU concedes that “Plaintiff’s Amended
Complaint does not explicitly plead a claim for negligence.” (See Memorandum of
Law in Support of Defendant’s Motion for Summary Judgment (“Def. Memo”) at
pp. 23-25.) The Court does not read Plaintiff’s Amended Complaint to make any such
claims. Therefore, the Court will not address that aspect of MCU’s motion.

2

MCU’s submissions include a copy of the notice served on Plaintiff pursuant to Local
Civil Rule 56.2 of the Southern District of New York, advising her of the
consequences of summary judgment motion practice as well as her obligation to
respond to the motion with evidentiary submissions. (See Docket Entry No. 24.)

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BACKGROUND3
Municipal Credit Union is an institution that provides banking and financial
services. (Def. 56.1 St. ¶ 8.) Plaintiff was hired by MCU as a teller on or about February 28,
2011, and was initially assigned to work at MCU’s Co-Op City branch. (Id. ¶¶ 9, 11.) In this
capacity, Plaintiff assisted MCU members with their daily banking needs. (Id. ¶ 12.) Plaintiff
alleges that, on January 25, 2012, a coworker named Heather Lashley pushed a rolling chair into
Plaintiff, causing an injury to her shoulder. (Id. ¶ 25; Amended Complaint (“Am. Compl.”),
Docket Entry No. 4, at ECF p. 13.)4 Because of this incident and the resulting injury, Plaintiff
took a leave of absence from MCU from January 26, 2012 through June 10, 2012. (Def. 56.1 St.
¶ 28; Am. Compl. at ECF pp. 6-8, 13.) Plaintiff claims that the injury caused her to suffer both
back and shoulder pain. (See Am. Compl. at ECF p. 13.)
Plaintiff returned to work on June 11, 2012. (Def. 56.1 St. ¶ 31.) During
Plaintiff’s absence, her teller position at MCU’s Co-Op City branch had been filled. (Id. ¶ 33.)

3

Facts recited as undisputed are identified as such in the Defendant’s statement
pursuant to S.D.N.Y. Local Civil Rule 56.1 or drawn from evidence as to which
there is no non-conclusory contrary factual proffer. Citations to the Defendant’s
Local Civil Rule 56.1 Statement (“Def. 56.1 St.”) incorporate by reference the
Defendant’s citations to underlying evidentiary submissions. Because Plaintiff did
not file an opposing Rule 56.1 Statement, or proffer evidence controverting the
factual assertions in Defendant’s Rule 56.1 Statement, the Court considers the facts
set forth in Defendant’s Rule 56.1 Statement as undisputed for the purposes of this
motion. See Fed. R. Civ. P. 56(e)(2); Gubitosi v. Kapica, 154 F.3d 30, 31 n.1 (2d
Cir. 1998) (“All material facts set forth in the statement required to be served by the
moving party will be deemed admitted unless controverted by the statement
required to be served by the opposing party.”) (internal citations omitted).

4

For the purposes of the instant motion practice, the Court also deems as true the wellpleaded allegations in Plaintiff’s Amended Complaint, as well as the facts proffered in
her Affirmation in Opposition to Defendant’s Motion for Summary Judgment (Docket
Entry No. 29, “Opp. Aff.”), both of which were sworn to under penalty of perjury.
“Mere conclusory statements” included in these pleadings, however, have not been
accepted as true. See e.g., Ashcroft v. Iqbal, 555 U.S. 662, 678 (2009).

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Plaintiff was therefore reassigned to another branch in the Bronx, where she retained the same
job title. (Def. 56.1 St. ¶ 33.) Despite Plaintiff’s injury, she was cleared to return to work “full
duty and no restrictions,” a fact that she acknowledged at her deposition. (See Affirmation of
Dena E. Epstein in Support of Defendant’s Motion for Summary Judgment (“Epstein Aff.”), Ex.
3, Deposition of Shecara James, 95:5-8, 96:21-24; Ex. 14, note from Orsuville Cabatu, M.D.) In
her Amended Complaint, however, Plaintiff alleges that she was under doctor’s orders to not lift
more than five pounds, and claims that she brought this limitation to her manager’s attention
upon reporting back to work. (See Am. Compl. at ECF p. 13.) Her manager, Neida Vargas
(“Vargas”), thereafter contacted MCU’s human resources department to confirm whether
Plaintiff had been returned to work with or without restrictions. (Def 56.1 St. ¶ 37.) Plaintiff
implies that her limitation prevented her from lifting her cash box because she was required to
keep a certain number of rolls of quarters in the box that caused it to be heavier than 5 pounds.
(See Opp. Aff. at pp. 7-9.) Nonetheless, Plaintiff admitted in her deposition that she never asked
anyone to assist her in lifting her cash box and that, following her return from medical leave, she
was never unable to lift her cash box. (Def. 56.1 St. ¶¶ 40-41.)
Plaintiff further claims that, during her time at the Bronx branch, she faced racebased discrimination from her Hispanic co-workers and supervisors. (See Am. Compl. at ECF
pp. 13-14.) Plaintiff alleges that the branch manager, Vargas, made fun of “the way [she] was
hurt at work” by pantomiming hitting her with a cash box lid, causing her to be humiliated in
front of her co-workers. (See Am. Compl. at ECF p. 14; Def. 56.1 St. ¶¶ 45-46.) Plaintiff
further alleges that another Hispanic coworker, Sylvia Abril (“Abril”), “never liked [her]
because of [her] race,” and threatened to kick her one day after she made an error. (See Am.
Compl. at ECF p. 14.) She also alleges that she was subjected to general mistreatment, such as
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being told to “shut up,” and being excluded from employee events like “Wear Red Day” and
“Jeans Day.” (Am. Compl. at ECF p. 14.) However, in her deposition, Plaintiff admitted that
neither Abril nor Vargas made any race-based comments to her (Def. 56.1 St. ¶¶ 100, 105.)
Furthermore, Plaintiff had received a copy of MCU’s Employee Handbook, which expresses a
commitment to “equal employment opportunity to qualified individuals despite their race, color
. . . [or] physical or mental handicap.” (See Def. 56.1 St. ¶¶ 13-14.) The handbook also includes
a dedicated section on the ADA that includes a discussion of the statute’s reasonable
accommodation requirement. (Id. ¶ 17.) However, Plaintiff never alleges that she complained
about any discrimination based on race or disability to any management or human resources
official at MCU. (See generally Am. Compl.) Plaintiff also was familiar with MCU’s Code of
Ethics, which required avoidance of “conflict of interest” and required “honesty and integrity.”
(Def. 56.1 St. ¶ 15.)
On July 13, 2012, after she had been back at work for 23 days, Plaintiff
commenced a second leave of absence based on her shoulder injury. (Def. 56.1 St. ¶ 47.) In
November 2012, Plaintiff had arthroscopic surgery on her shoulder. (See Am. Compl. at ECF
pp. 11-13.) Her treating physician later determined for worker’s compensation purposes that
Plaintiff suffered “35% schedule loss of use to the right shoulder.” (Id. at ECF p. 9.) She
returned on January 28, 2013, once again cleared, as she admitted in her deposition testimony, to
work without restriction. (Def. 56.1 St. ¶¶ 48, 50-51.) On March 7, 2013, a performance
improvement plan was discussed with Plaintiff and, as a result, she was placed on probation
through June 7, 2013. (Id. ¶ 52.) On March 28, 2013, she received another performance
improvement plan, which recommended that any cash passed through the teller window be
counted using the “hand to table” method. (Id. ¶¶ 55-56, 59.) On April 23, 2013, Plaintiff took a
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third leave of absence, from which she returned on May 13, 2013, once again with no
restrictions. (Def. 56.1 St. ¶¶ 62-65.)
On May 15, 2013, a female customer approached Plaintiff’s teller window to
deposit cash. (Id. ¶ 66.) Plaintiff admitted in her deposition that she failed to do hand to table
counting of the deposit, as required by her performance improvement plan. (Id. ¶ 67.) Plaintiff
next assisted a gentleman with a withdrawal. (Id. ¶ 69.) Concurrently, the female customer she
had assisted with the deposit began to complain to Plaintiff that her deposit receipt was $40
short. (Id. ¶ 70.) Plaintiff admitted in her deposition that, had she done hand to table counting,
she likely would not have committed this error. (Id. ¶ 82.) While the female customer was
complaining, the gentleman returned and gave Plaintiff $40 back. (Id. ¶ 71.) The female
customer told Plaintiff that the $40 was likely from the money that she had given Plaintiff to
deposit. (Id. ¶ 73.) Plaintiff nonetheless put the money returned by the gentleman into her back
pocket, despite her knowledge that MCU policy forbids accepting tips. (Id. ¶¶ 77-78.) At her
deposition, Plaintiff testified to her belief that she had received a tip from the gentleman, or his
phone number. (Id. ¶¶ 75-76.) After receiving a complaint from the female customer, MCU
investigated the incident and terminated Plaintiff’s employment. (Id. ¶ 83.) Although Plaintiff
was not aware of who made the ultimate decision to terminate her, the decision was
communicated to her by David Sumner and Kim Thompson, both of whom are African
American. (Id. ¶¶ 83-84.)
Plaintiff filed an intake questionnaire with the Equal Employment Opportunity
Commission on June 12, 2013, in which she asserted claims of race and disability-based
discrimination. (Id. ¶¶ 1, 3.) On June 24, 2013, Plaintiff received a Notice of Right to Sue from
the EEOC, informing her that her file was being closed because the EEOC could not find that
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she had established violations of the applicable anti-discrimination statutes. (Am. Compl. at
ECF p. 5.) Plaintiff also grieved her termination through her union, Local 153. (Def. 56.1 St. ¶
119.) Local 153 ultimately decided against bringing Plaintiff’s case to arbitration, on the belief
that there was no likelihood of success. (Id. ¶ 122.) Plaintiff thereafter filed this action, on June
28, 2013. (See Docket Entry No. 1.) In January 2014, Plaintiff applied to the Court for
appointment of pro bono counsel. (See Docket Entry No. 14.) On May 13, 2014, Magistrate
Judge Kevin N. Fox issued a Memorandum and Order denying Plaintiff’s request for counsel,
finding that the majority of her claims were not likely to be of substance. (See Docket Entry No.
16.) Defendant MCU subsequently filed the instant motion for summary judgment. (See Docket
Entry No. 20.)

DISCUSSION
Summary judgment is to be granted in favor of a moving party where that party
can demonstrate “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); see also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 256 (1986). Thus, the claims of a party who is unable 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,” will be unable to survive a Rule 56
motion. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the burden
of demonstrating the absence of a material fact, and the court must be able to find that, “‘after
drawing all reasonable inferences in favor of a non-movant, no reasonable trier of fact could find
in favor of that party.’” Marvel Entertainment, Inc. v. Kellytoy (USA), Inc., 769 F. Supp. 2d
520, 523 (S.D.N.Y. 2011) (quoting Heublein v. United States, 996 F.2d 1455, 1461 (2d Cir.
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1993)). For the purposes of summary judgment motion practice, a fact is considered material “if
it might affect the outcome of the suit under the governing law,” and an issue of fact is
“genuine” where “the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Holtz v. Rockefeller & Co. Inc., 258 F.3d 62, 69 (2d Cir. 2001) (internal
quotation marks and citations omitted). “[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) (internal quotation marks and citation omitted). “As to
issues on which the non-moving party bears the burden of proof, the moving party may simply
point out the absence of evidence to support the nonmoving party’s case.” Nora Beverages, Inc.
v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998).

Plaintiff’s Title VII Claims
Plaintiff alleges that she faced discrimination by her supervisors based on
her race on several occasions. In situations where no direct evidence of discrimination has been
proffered, courts apply the three-step burden-shifting analysis articulated in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-03 (1973). See e.g., Terry v. Ashcroft, 336 F.3d 128, 141 (2d
Cir. 2003); see also Pronin v. Raffi Custom Photo Lab, Inc., 383 F. Supp. 2d 628, 634 (S.D.N.Y.
2005) (“In the absence of direct evidence of discrimination, a plaintiff in an employment
discrimination case usually relies on the three-step McDonnell Douglas test.”). This test requires
the plaintiff to establish a prima facie case of discrimination by demonstrating that: (1) she is a
member of a protected class; (2) she performed her job satisfactorily; (3) she suffered an adverse
employment action; and (4) the adverse employment action occurred under circumstances giving
rise to an inference of discrimination. See e.g., Arnow v. Aeroflot Russian Airlines, 980 F.
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Supp. 2d 477, 483 (S.D.N.Y. 2013) (citing Stratton v. Dep’t for Aging for N.Y.C., 132 F.3d 869,
879 (2d Cir. 1997)). Once the plaintiff has established a prima facie case of discrimination, the
burden shifts to the defendant to proffer a legitimate, non-discriminatory reason for its actions.
See Stratton, 132 F.3d at 879. If defendant is able to provide such a reason, the presumption of
discrimination raised by the prima facie case is rebutted and the plaintiff must show, on the basis
of all of the evidence presented, that it is more likely than not that the employer’s decision was,
in fact, motivated by discrimination. See id. (quoting St. Mary’s Honor Center v. Hicks, 509
U.S. 502, 510-11 (1993)). “The ultimate burden of persuading the trier of fact that the defendant
intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Texas
Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Defendant MCU concedes, for the purposes of this motion practice, that Plaintiff
can demonstrate that she was a member of a protected class (African American) and that she was
qualified and able to perform the duties of her position satisfactorily. (See Def. Memo at p. 5.)
MCU argues, however, that Plaintiff cannot demonstrate that she was subjected to an adverse
employment action or that, even if she could make that showing, she would not be able to show
that the action occurred under circumstances giving rise to an inference of discrimination.
Furthermore, MCU argues that it has proffered a legitimate, nondiscriminatory reason for
terminating Plaintiff, and that she cannot demonstrate that the reason given is a mere pretext for
discrimination.
Title VII Discrimination
In the context of a Title VII claim, the Second Circuit “define[s] an adverse
employment action as a ‘materially adverse change’ in the terms and conditions of
employment.” Sanders v. New York City Human Resources Admin, 361 F.3d 749, 755 (2d Cir.
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2004) (quoting Richardson v. New York State Dep’t of Corr. Serv., 180 F.3d 426, 446 (2d Cir.
1999)). “To be materially adverse, a change in working conditions must be ‘more disruptive
than a mere inconvenience or an alteration of job responsibilities’ . . . Examples of such a
change include ‘termination of employment, a demotion evidenced by a decrease in wage or
salary, a less distinguished title, a material loss of benefits, significantly diminished material
responsibilities, or other indices . . . unique to a particular situation.’” Sanders, 361 F.3d at 755
(quoting Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003).
Alleged Discriminatory Treatment
Here, Plaintiff has asserted that Neida Vargas, the Bronx branch manager, and
Silvia Abril, the assistant branch manager, spoke in warmer tones to Spanish speaking coworkers; that Vargas pantomimed hitting her with a cash box lid; that Abril threatened to kick
her after she made an error on a transaction; that she felt excluded from certain company
activities; and that Abril made certain unspecified “negative” remarks toward her. (See Am.
Compl. at ECF p. 14; Def. 56.1 St. ¶¶ 88-89, 94-97.) None of these acts is alleged to have
resulted in termination, demotion, compensation or title change or any comparable “materially
adverse change” in Plaintiff’s employment status; thus none is sufficiently serious constitute an
adverse employment action for the purposes of a Title VII discrimination claim. Courts in this
circuit have held that “adverse comments, criticism, threats to . . . employment, close scrutiny,
[and] yelling . . . do not qualify” as adverse employment actions. See Sangan v. Yale University,
No. 03:06CV00587-PCD, 2008 WL 350626, at *5 (D. Conn. Feb. 7, 2008); see also Sekyere v.
City of New York, 05CV7192-BSJ, 2009 WL 773311, at *4 (holding that defendants’ “yelling
and screaming” at plaintiff was not a materially adverse employment action). Thus, Plaintiff has
failed to proffer any evidence demonstrating that she suffered an adverse employment action at

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the hands of her supervisors. The Court therefore grants summary judgment to MCU and
dismisses Plaintiff’s Title VII claims of racial discrimination based on these alleged actions of
these supervisors.
Termination of Plaintiff’s Employment
Defendant MCU concedes that the termination of Plaintiff’s employment was an
adverse employment action for the purposes of Title VII discrimination analysis. (See Def.
Memo at p. 6.) MCU argues, however, that “Plaintiff still cannot establish a prima facie case of
race discrimination because her termination did not occur under circumstances giving rise to an
inference of discrimination.” (Id.) The Court agrees. “Although courts in this Circuit have
recognized that there is no rigid rule about what circumstances allow an inference of
discrimination, a plaintiff must come forward with some evidence, beyond merely stating that he
is a member of a protected class who suffered an adverse employment decision.” Williams v.
Padilla, Inc., 07CV7720-CM, 2009 WL 362100, at *7 (S.D.N.Y. Feb. 10, 2009) (internal
quotation marks and citation omitted). The Second Circuit has provided some guidance on the
contours of this inquiry, holding that “[t]he circumstances that give rise to an inference of
discriminatory motive include actions or remarks made by decisionmakers that could be viewed
as reflecting a discriminatory animus . . . [or] preferential treatment given to employees outside
the protected class.” Chertkova v. Connecticut General Life Ins. Co., 92 F.3d 81, 91 (2d Cir.
1996) (internal citations omitted); see also Chambers v. TRM Copy Centers Corp., 43 F.3d 29,
37 (2d Cir. 1994) (citing “employer’s criticism of the plaintiff’s performance in ethnically
degrading terms,” and “invidious comments about others in the employee’s protected group,” as
evidence giving rise to an inference of discrimination).
Plaintiff has proffered no evidence linking her termination to any racial motive,

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nor pointed to any evidence of racial hostility beyond her own conclusory statements and
assumptions.5 She notes that she felt that some of her coworkers “never liked [her] because of
[her] race,” but fails to substantiate this assertion with any evidence of race-related words or
actions. She does not allege that her coworkers made any racial remarks towards her (Def. 56.1
St. ¶¶ 100, 105), and does not proffer any evidence that the individuals who told her that she had
been terminated – both of whom were African American – acted with any racial animus. (Id. ¶¶
84, 86.) See Drummond v. IPC Intern., Inc., 400 F. Supp. 2d 521, 532 (E.D.N.Y. 2005) (“a
well-recognized inference against discrimination exists where the person who participated in the
allegedly adverse decision is also a member of the same protected class.”). Furthermore, as
MCU points out, Plaintiff does not allege that any non-African American employees were
treated more favorably than she was; rather, she alleges that other African American employees
– members of the same protected class – were treated more favorably than she was. (Def. 56.1
St. ¶ 86.)
Because Plaintiff has proffered no evidence that raises an issue of material fact
for trial linking her termination with racial discrimination, the Court grants MCU’s motion for
summary judgment insofar as it seeks dismissal of her discrimination claim based on her
termination.
Title VII Hostile Work Environment Claim
Plaintiff’s Amended Complaint, construed liberally, may be read to assert a
hostile work environment claim. “In order to prevail on a claim for hostile work environment
under Title VII, a plaintiff must demonstrate three elements: (1) that she was subjected to

5

As Defendant points out, Plaintiff does not even allege that she was terminated due to
her race. (See Am. Compl. at ECF p. 14.)

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conduct that was objectively severe or pervasive ‘to alter the conditions of the victim’s
employment and create an abusive working environment’; (2) that she subjectively perceived the
environment to be hostile or abusive; and (3) that the offending conduct created an abusive
environment because of the plaintiff’s [membership in a protected group].” Murdaugh v. City of
New York, No. 10CV7218-HB, 2011 WL 4001011, at *1 (S.D.N.Y. Sept. 1, 2011) (quoting
Patane v. Clark, 508 F.3d 106, 112-14 (2d Cir. 2007)). In analyzing the objective element of this
test, a court will examine “the totality of the circumstances” which include “the frequency of the
discriminatory treatment and its severity, whether the abuse was physical or mere verbal insult,
and the extent to which the conduct interfered with the plaintiff’s ability to perform at work.”
Cortes v. City of New York, 700 F. Supp. 2d 474, 485 (S.D.N.Y. 2010).
Plaintiff’s allegations regarding her treatment by Vargas and Abril; being left out
of employee events; being yelled at by the HR department; and being “picked on” by other
employees at the bank, even taken together, simply do not rise to the level of conduct that is so
objectively pervasive or severe that it “altered the conditions” of Plaintiff’s employment.
Plaintiff presents no evidence that shows a pattern of consistent harassment or a single materially
significant incident of race-based mistreatment, and she offers no evidence that these events
interfered with her ability to perform her job. Thus, Plaintiff has not raised a genuine issue of
disputed fact with respect to the objective prong of the hostile work environment inquiry. Nor
has Plaintiff pointed to any information, beyond her own surmise, that any of these cited
instances were precipitated by racial animus. Plaintiff cannot construct a viable discrimination
case based on a series of “non-racial personality clash[es].” See e.g., Regis v. Metropolitan
Jewish Geriatric Center, No. 97CV0906-ILG, 2000 WL 264336, at *14 (E.D.N.Y. 2000).
Because Plaintiff has raised no genuine issues of material fact with respect to at least two prongs

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of the hostile work environment inquiry, the Court grants MCU’s motion for summary judgment
insofar as it seeks dismissal of this claim.
Title VII Retaliation Claim
“To establish a prima facie case of retaliation, [the plaintiff] must show that (1)
she was engaged in protected activity; (2) [the defendant] was aware of that activity; (3) [the
plaintiff] suffered a materially adverse action; and (4) there was a causal connection between the
protected activity and that adverse action.” Shih v. JPMorgan Chase Bank, N.A., No.
10CV9020-JGK, 2013 WL 842716, at *5 (S.D.N.Y. March 7, 2013) (quoting Lore v. City of
Syracuse, 670 F.3d 127, 157 (2d Cir. 2012)). For the purposes of a Title VII retaliation claim,
“[a] protected activity is one that protest[s] or oppose[s] statutorily prohibited discrimination.”
Kouakou v. Fideliscare New York, 920 F. Supp. 2d 391, 400 (S.D.N.Y. 2012) (internal quotation
marks and citation omitted). Such activities include instituting litigation or filing a formal
complaint. See e.g., Giscombe v. New York City Dept. of Educ., 39 F. Supp. 3d 396, 401
(S.D.N.Y. 2014). Plaintiff has proffered no evidence that satisfies this first prong of the
retaliation inquiry. Nowhere in her Amended Complaint, nor her Opposition Affirmation, does
Plaintiff assert that she engaged in any type of “protected activity.” The deficiency is fatal to her
retaliation claim. (See generally Am. Compl.)
Construing her allegations liberally, the closest that Plaintiff comes to
demonstrating that she engaged in a “protected activity” is her claim that she alerted Marcella
Warner, the head teller at the Bronx branch, of the incident in which Abril threatened to kick her.
(See id. at ECF p. 14.) Even assuming, arguendo, that this complaint constituted a “protected
activity,” Plaintiff has proffered no evidence that MCU was aware that she had engaged in this
activity, nor that she suffered an adverse action that can be causally linked to the activity, as

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required under Title VII. See University of Texas Southwestern Med. Center v. Nassar, 133 S.
Ct. 2517 (2013). The Court therefore grants MCU’s motion for summary judgment insofar as it
seeks dismissal of Plaintiff’s Title VII retaliation claim.

Plaintiff’s ADA Claims
In her Amended Complaint, Plaintiff asserts that MCU discriminated against her
based on her disability; failed to accommodate her disability; and retaliated against her for taking
medical leaves of absence. (See generally Am. Compl.; see also Def. 56.1 St. ¶ 1.) MCU has
moved for summary judgment dismissing each of these claims.
Plaintiff’s Disability Discrimination Claim
“ADA employment discrimination claims are subject to the familiar burdenshifting analysis established by the Supreme Court in McDonnell Douglas Corp. v. Green.”
Sista v. CDC Ixis North America, Inc., 445 F.3d 161, 169 (2d Cir. 2006). “To establish a prima
facie case under the ADA, a plaintiff must show by a preponderance of the evidence that: (1)
[her] employer is subject to the ADA; (2) [she] was disabled within the meaning of the ADA; (3)
[she] was otherwise qualified to perform the essential functions of [her] job, with or without
reasonable accommodation; and (4) [she] suffered adverse employment action because of [her]
disability.” Sista, 455 F.3d at 169. (internal quotation marks and citation omitted). If a prima
facie case is made, the burden shifts to the employer to proffer a legitimate, nondiscriminatory
reason for its action. Id. If the employer is able to articulate such a reason, the plaintiff must
then show that the employer’s proffered reason was mere pretext for a discriminatory motive.
Id.
Defendant MCU argues that Plaintiff was not “disabled” within the meaning of

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the ADA. “Not every impairment is a ‘disability’ within the meaning of the ADA; rather . . . the
impairment must limit a major life activity and the limitation must be substantial.” Rodriguez v.
Verizon Telecom, No. 13CV6969-PKC-DCF, 2014 WL 6807834, at *4 (S.D.N.Y. Dec. 3, 2014)
(citing Capobianco v. City of New York, 422 F.3d 47, 56 (2d Cir. 2005)). “The regulations
implementing the ADA Amendments Act of 2008 (“ADAAA”), Pub. L. No. 110–325, 122 Stat.
3553, provide that an impairment constitutes a disability if ‘it substantially limits the ability of
an individual to perform a major life activity as compared to most people in the general
population.’ 29 C.F.R. § 1630.2(j)(1)(ii).” See Rodriguez, 2014 WL 6807834, at *4; see also
Glaser v. Gap Inc., 994 F. Supp. 2d 569, 575 (S.D.N.Y. 2014).6 “The [relevant] regulations
define the term ‘substantially limits’ to mean: ‘(i) [u]nable to perform a major life activity that
the average person in the general population can perform; or (ii)[s]ignificantly restricted as to the
condition, manner or duration under which an individual can perform a particular major life
activity as compared to the condition, manner, or duration under which the average person in the
general population can perform that same major life activity.’” McNamara v. Tourneau, Inc.,
326 F. App’x 68, 69 (2d Cir. 2009) (summary order). Further, “a record of such an impairment;
or being regarded as having such an impairment” also qualifies as being disabled under the terms
of the statute. See 42 U.S.C.S. § 12102 (LexisNexis 2009).
Plaintiff offers no evidence that she suffered from an impairment that

6

Under the ADA, major life activities include, but are not limited to, “caring for
oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing,
lifting, bending, speaking, breathing, learning, reading, concentrating, thinking,
communicating, and working . . . Major life activities also may include the operation
of a major bodily function, including but not limited to, functions of the immune
system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory,
circulatory, endocrine, and reproductive functions.” Morris v. Town of Islip, No.
12CV2984-JFB-SIL, 2014 WL 4700227, at *9 (E.D.N.Y. Sept. 22, 2014) (internal
quotation marks and citation omitted).

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substantially limited any major life activity. Although Plaintiff has proffered evidence that she
suffered an injury as a result of the chair-pushing incident (see Am. Compl. at ECF pp. 9, 11-12,
15),7 and claims that her doctor set a lifting limitation of five pounds for her (id. at ECF p. 13),
she has offered no evidence that the injury substantially limited her ability to perform any major
life activity. To the contrary, MCU has provided evidence demonstrating that, on three separate
occasions, Plaintiff’s doctor returned her to work without any restrictions following her injury.
(See Def. 56.1 St. ¶¶ 29-30, 38-39, 48, 50-51, 63-64.) MCU has also proffered evidence of
Defendant’s admission that her ability to perform her job was not substantially limited by her
injury. (See Def. 56.1 St. ¶ 40-41.) Plaintiff has not proffered any evidence to controvert either
of MCU’s showings and, therefore, Plaintiff has failed to demonstrate that there is any material
issue of fact as to whether she was disabled within the meaning of the ADA at any relevant time.
For this reason, the Court grants MCU’s motion for summary dismissal of Plaintiff’s disability
discrimination claim.8
Adverse Employment Action
Even assuming, arguendo, that Plaintiff had demonstrated that she was a qualified

7

The fact that Plaintiff was found to have suffered a disability for the purposes of her
worker’s compensation award is not conclusive of whether she was disabled within
the meaning of the ADA. See Schapiro v. New York City Dept. of Health, 25 F.
App’x 57, 62 n.2 (2d Cir. 2001) (“While [Worker’s Compensation Board findings]
may establish a record of the physical impairment, they do not establish a record
that the physical impairment created a substantial limitation,” for the purposes of
ADA claim analysis.).

8

For the same reasons, the Court grants MCU’s motion for summary judgment with
respect to Plaintiff’s failure to accommodate claim, which also requires a showing that
Plaintiff was disabled within the meaning of the ADA. See e.g., Noel v. BNY-Mellon
Corporation, No. 10CV9143-JSR, 2011WL4633884, at *2 (S.D.N.Y. Oct. 4, 2011)
(“To make a prima facie case of failure to accommodate, a plaintiff must show ‘(1)
that [she] is an individual who has a disability within the meaning of the statute . . .’”)
(quoting Stone v. City of Mount Vernon, 118 F.3d 92, 96-97 (2d Cir. 1997)).

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person with a disability within the meaning of the ADA, she is unable to demonstrate that she
suffered an adverse employment action causally related to discrimination, which is essential to a
prima facie case of discrimination. A careful reading of the Amended Complaint reveals two
incidents that Plaintiff appears to assert as adverse employment actions suffered in response to
her disability: MCU’s transfer of Plaintiff to the Bronx branch, and Plaintiff’s termination.
Plaintiff has not presented any evidence to show that her transfer to the other
Bronx branch constituted a material, adverse change in the terms and conditions of her
employment. Sanders, 361 F.3d at 755. She suffered no “decrease in wage or salary, [no] less
distinguished title, [no] material loss of benefits, [and no] significantly diminished material
responsibilities” as a result of her transfer to the other branch. Id. “Obviously, a purely lateral
transfer, that is, a transfer that does not involve a demotion in form or substance, cannot rise to
the level of a materially adverse employment action.” See Galabya v. New York City Board of
Educ., 202 F.3d 636, 641 (2d Cir. 2000) (quoting Williams v. Bristol-Myers Squibb Co., 85 F.3d
270, 274 (7th Cir. 1996)). Although MCU concedes that Plaintiff did have a longer commute
and needed to alter her hours as a result of the transfer, Plaintiff has failed to controvert MCU’s
showing that she retained the same job upon her transfer to the other branch. (See Def. 56.1 St. ¶
33.) Furthermore, Plaintiff has offered no evidence that her transfer was in any way linked to
her disability. MCU, on the other hand, has offered uncontroverted evidence that she was
transferred because her position at the Co-Op City branch had been filled during her four-andone-half month injury absence. (See id.) Thus, Plaintiff has not raised any genuine fact issue as
to whether her transfer to the Bronx branch was an adverse employment action that was linked in

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any way with her disability.9
While MCU has conceded that termination of Plaintiff’s employment constitutes
an adverse employment action (Def. Memo at p. 6), Plaintiff has identified no facts that could
support a reasonable inference that she was terminated because of any disability. Moreover,
MCU has proffered evidence of a legitimate, non-discriminatory business reason for Plaintiff’s
discharge that Plaintiff has failed to rebut by providing any evidence from which a fact finder
could rationally infer that MCU’s proffered reason was a pretext for disability discrimination.
MCU has proffered undisputed evidence that Plaintiff was terminated from her position as a
teller due to theft, violating MCU’s policy against accepting tips, and/or failing to follow MCU’s
banking procedures, showing that Plaintiff failed to adhere to “hand to table” deposit counting
protocol and that, at a minimum, she accepted what she thought to be a tip from a customer
although she knew that acceptance of tips was prohibited. (See Def. 56.1 St. ¶¶ 66-84.) Plaintiff
therefore bears the burden of demonstrating that “the legitimate reasons offered by [MCU] were
not its true reasons, but were a pretext for discrimination.” Burdine, 450 U.S. at 253. Plaintiff,
however, has not provided a shred of evidence that MCU’s proffered reason for her termination
was a pretext for disability discrimination. Thus, Plaintiff cannot demonstrate that she was
discriminated against as a result of her disability during her time at MCU’s Bronx branch, and all

9

Moreover, any claim that Plaintiff may assert based on her transfer to the Bronx
branch is time-barred. Plaintiff was transferred to the Bronx branch on June 11, 2012.
(Def. 56.1 St. ¶¶ 31, 33.) Pursuant to the ADA, a charge of discrimination must be
filed with the EEOC within 300 days of the alleged discriminatory act. See Foster
v. (D.O.E.) Theatre Arts Production Co. School, No. 12CV3661-AT, 2014 WL
265787, at *4 (S.D.N.Y. Jan. 24, 2014) (citing Tewksbury v. Ottoway Newspapers,
Inc., 192 F.3d 322, 325-29 (2d Cir. 1999)). Plaintiff, however, did not file her
charge of discrimination with the EEOC until June 12, 2013, a date that falls outside
of the relevant 300-day window. (Def. 56.1 St. ¶ 2.) Accordingly, any claim based
on Plaintiff’s transfer to the Bronx branch is time-barred.

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such claims are appropriately dismissed.
Plaintiff’s Retaliation Claim
Plaintiff further claims that she was retaliated against under the ADA for taking
disability leave. (See Am. Compl. at ECF pp. 3.) To establish a prima facie case of retaliation
under the ADA, a plaintiff must demonstrate that “(1) [she] engaged in an activity protected by
the ADA; (2) the employer was aware of this activity; (3) the employer took adverse
employment action against [her]; and (4) a causal connection exists between the alleged adverse
action and the protected activity.” See Treglia v. Town of Manilus, 313 F.3d 713, 719 (2d Cir.
2002). If Plaintiff can establish a prima facie case, then burden would shift to MCU to
demonstrate a legitimate non-discriminatory reason for the employment action, at which point
Plaintiff would be required to demonstrate that MCU’s proffered reason was mere pretext for
discrimination. See Sista, 455 F.3d at 169.
While Plaintiff’s request for an accommodation of her alleged five-pound lifting
limitation may arguably be seen as a “protected activity” (see Weixel v. Bd. of Educ. Of City of
New York, 287 F.3d 138, 149 (2d Cir. 2002) (seeking reasonable accommodation of a disability
constitutes a protected activity under the ADA)), and her termination may constitute an adverse
employment action, Plaintiff has proffered no evidence demonstrating any causal connection
between her request for accommodation and her termination. Moreover, MCU has proffered a
legitimate, non-discriminatory reason for her termination, which Plaintiff has been unable to
rebut as pretextual. Thus, MCU is entitled to judgment dismissing the ADA retaliation claim as
a matter of law, and the Court grants MCU’s motion for summary judgment on this claim.10

10

Because the Court has granted summary judgment with respect to all of Plaintiff’s
Title VII and ADA claims, MCU’s argument seeking summary dismissal of Plaintiff’s
claim for punitive damages need not be addressed. (See Def. Memo at p. 25.)

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CONCLUSION
For the foregoing reasons, Defendant MCU’s motion for summary judgment
seeking dismissal of each of the claims asserted in Plaintiff’s Amended Complaint is granted in
its entirety.
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, and therefore in forma pauperis status is denied for the
purpose of appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
This Memorandum Opinion and Order resolves docket entry number 20. The
Clerk of Court is respectfully requested to enter judgment in Defendant’s favor and close this
case.
SO ORDERED.
Dated: New York, New York
February 19, 2016

/s/ Laura Taylor Swain
LAURA TAYLOR SWAIN
United States District Judge
Copy mailed to:
Ms. Shecara James
4354 Richardson Ave., Apt. 5C
Bronx, NY 10467

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