Croci v. Town of Haverstraw et al
OPINION AND ORDER: re: 54 MOTION for Summary Judgment filed by Howard Phillips, George Wargo, Town of Haverstraw. For the reasons discussed above, defendants' Motion for Summary Judgment is GRANTED. The Clerk of Court is directed to close the motion at ECF No. 54 and terminate the action. SO ORDERED. (Signed by Judge Katherine B. Forrest on 12/08/2017) (ama)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
TOWN OF HAVERSTRAW, GEORGE WARGO, :
individually, and HOWARD PHILLIPS,
DOC #: _________________
DATE FILED: December 8, 2017
OPINION & ORDER
KATHERINE B. FORREST, District Judge:
On July 9, 2014, plaintiff Cheryl Croci, who had previously been employed by
the Town of Haverstraw, New York, brought this action against the Town of
Haverstraw (the “Town”) and against George Wargo, the superintendent of the
Town’s Highway Department, and Howard Phillips, the Town Supervisor, in their
individual capacities, alleging, among other things, retaliation in violation of Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq.
Defendants now move for summary judgment. For the reasons set forth
below, that motion is GRANTED.
A. Factual Background
The following facts are materially undisputed and all inferences are drawn in
favor of the plaintiff. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Plaintiff, a female, worked for the Town of Haverstraw from 1997–2013.
(Second Amended Complaint (“SAC”)), ¶¶ 9–36.) She was first employed on a parttime basis (from 1997–2000), and became a full-time employee in 2000. (Id. ¶¶ 9–
10.) She began work for the Town’s Department of Highways on or about March
2000. (Id. ¶ 11.) She was, first, a “clerk” for the Department, then a “clerk typist,”
and finally became a “confidential secretary” 1 to the Superintendent of Highways,
Frank Brooks, on or about January 28, 2002. (Id. ¶¶ 10, 15, 17; ECF No. 57,
Defendants’ Local Rule 56.1 Statement (“Defs.’ 56.1 Statement”).)
Defendant Howard Phillips was, at all relevant times, the Town Supervisor.
(SAC ¶ 8.) Defendant George Wargo succeeded Brooks as Superintendent of
Highways. (Id. ¶ 34.)
In 2013, plaintiff’s employer chose not to seek re-election. (Defs.’ 56.1
Statement ¶ 16.) A campaign followed; the two candidates vying in the primary for
the democratic nomination were defendant Wargo and non-party John Piperato.
(Id.) Defendant Wargo won both the primary and general elections and
subsequently terminated plaintiff’s employment in December 2013. (Id. ¶¶ 16, 21.)
1. Plaintiff’s Complaints
On or about March 2, 2010, plaintiff began to make formal complaints about
sexual discrimination and a hostile work environment based on gender. (SAC ¶ 18.)
As a result of her claims, the Town instigated two investigations: while the first
concluded that her complaints were unsubstantiated, the second found that her
1 While the parties devote considerable energy to exploring whether “confidential secretary” was an
accurate description of plaintiff’s work, as that title carries legal significance, the Court does not
explore the question here as it decides the motion on alternate grounds.
gender-based hostile work environment claims were, in fact, substantiated. (Id.
¶¶ 18–22.) After the second investigation, plaintiff’s harasser was suspended and
told to avoid further contact with plaintiff. (Id. ¶ 23.) Plaintiff alleges—without
support—that Phillips (in his role of Town Supervisor) was “not pleased” about her
complaints. 2 (Id. ¶ 21.)
In or about 2011, plaintiff filed a lawsuit in Rockland County State Supreme
Court, alleging sexual harassment, sexual discrimination, and hostile work
environment based upon her gender. (ECF No. 56, Pitkoff Affidavit (“Pitkoff Aff.,”
Ex. F.) On December 1, 2014, that court granted the Town’s motion for summary
judgment. (Id., Ex. G.) Plaintiff appealed to the appellate division; it affirmed the
judgment of the Supreme Court. 146 A.D.3d 748 (N.Y. App. Div. 2017), leave to
appeal denied, 80 N.E.3d 404 (N.Y. 2017). Defendant Phillips was aware of this
lawsuit. (ECF No. 56-15, Phillips Deposition (“Phillips Dep.”), at 38–39.)
In March or April 2012, plaintiff attended a luncheon for the Superintendents
of Highways Association. (SAC ¶ 25.) Defendant Wargo was in attendance. (Id.)
According to plaintiff, she was forced to confirm in front of Wargo that she had
pending sexual harassment charges against the Town. (Id. ¶ 26.) Defendant Wargo
does not remember this conversation. (ECF No. 56-12, Wargo Deposition (“Wargo
Dep.”), at 48).
On or about July 2013, plaintiff filed a complaint with the EEOC. (SAC
2 This allegation (and the others that follow) as to defendant’s state of mind, is inadmissible and
therefore the Court does not consider it. See Porter v. Quarantillo, 722 F.3d 94, 97 (2d Cir. 2013)
(“[O]nly admissible evidence need be considered by the trial court in ruling on a motion for summary
judgment.”) (internal quotation marks and citations omitted).
¶ 33.) The Town was served with a copy of the EEOC Complaint. (Id.)
2. The 2013 Election
In 2013, defendant Wargo and John Piperato competed in an election for
Superintendent of Highways; Wargo won the primary and then the general election
in November 2013. (Defs.’ 56.1 Statement ¶¶ 16, 19.) Upon taking office, Wargo
terminated plaintiff’s employment in December 2013, replacing her with a
campaign supporter and long-time friend of his. (Id. ¶ 21.)
Plaintiff alleges that, in retaliation for her protected activities (launching
complaints and filing a law suit) defendant Phillips attempted to influence the
candidates for Town Supervisor (including Wargo—who won—and Piperato—who
lost) to fire her in exchange for his support. Plaintiff’s declaration states that “John
Piperato told me that he had met with Howard Phillips . . . [and that Phillips had
asked Piperato] . . . if he (Piperato) would retain me if he was elected.” (ECF No.
62, Croci Declaration (“Croci Decl.”), ¶ 31.) Plaintiff “understood this to be a clear
indication that Phillips no longer wanted me to serve in my general secretary role,
and that he wanted me out.” (Id.)
Piperato (the losing candidate), denies that Phillips applied any pressure to
dismiss plaintiff, stating in his sworn affidavit that:
At no time did Howard Phillips ever say or suggest in any way that I
would receive his political support in exchange for not maintaining
Cheryl Croci’s employment with the Town, if I were to be elected
Superintendent of Highways. No such communication or ‘agreement,’
as described in Plaintiff’s Amended Complaint . . . ever took place.” 3
(ECF No. 56-14, Piperato Affidavit (“Piperato Aff.”), ¶ 3.)
For his part, defendant Phillip swears in his deposition that he did not at
any point “suggest to Mr. Piperato that he would get [his] backing for the
superintendent’s position if he fired plaintiff once he was elected.” (Phillips Dep.
Throughout the campaign, Phillips in fact supported Wargo’s candidacy.
(Croci Decl. ¶ 33.) Plaintiff alleges—again without support—that “Wargo agreed to
honor Phillips’ wish that Plaintiff be terminated, in exchange for Phillip’s [sic]
backing.” (SAC ¶ 31.) Phillips denies any conversations with Wargo about plaintiff.
(Phillips Dep. 68:2-4.) Wargo also denies any such conversation. (Wargo Dep.
For her part, plaintiff signed Piperato’s petition for supervisor and obtained
signatures from five of her family members on his behalf. (Plaintiff’s Deposition
(“Plaintiff’s Dep.”) 66–72.
After Wargo defeated Piperato, he appointed Annamaria Badenchini, an
acquaintance of his for over thirty years, and a campaign supporter, to be his
confidential secretary, and told plaintiff that she would not be retained. (Wargo Aff.
¶¶ 2–5; Defs.’ 56.1 Statement ¶ 21.) This litigation followed.
Plaintiff submitted an additional undated affidavit from Piperato, in which he stated that he had
indeed had a conversation with Phillips in which Phillips inquired as to whether he intended to
retain plaintiff on staff; however, this statement does not contradict his deposition testimony that he
was never asked to fire plaintiff, or promised favors in return for doing so.
B. Procedural Background
Plaintiff first filed suit on July 9, 2014. (ECF No. 1.) She amended her
complaint on April 6, 2015, and defendants moved to dismiss all claims on June 26,
2015. (ECF No. 19.) On March 31, 2016, the motion was granted in part and
denied in part, leaving only plaintiff’s Title VII Retaliation claims against the Town
remaining. (ECF No. 30.) On April 15, 2017, plaintiff filed a Second Amended
Complaint. (ECF No. 47.)4
On June 23, 2017, defendants moved for summary judgment. (ECF No. 54.)
This matter was transferred to the undersigned on September 28, 2017.
A. Summary Judgment
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 initial burden of demonstrating “the
absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). When the moving party does not bear the ultimate burden on a
particular claim or issue, it need only make a showing that the non-moving party
lacks evidence from which a reasonable jury could find in the non-moving party’s
favor at trial. Id. at 322–23.
4 The Second Amended Complaint initially, in error, contained a Due Process claim, despite the fact
that the Court’s previous Order had dismissed this claim. (ECF Nos. 30, 47). Plaintiff subsequently
agreed to withdraw that claim. (ECF Nos. 49, 50.)
In making a determination on summary judgment, the court must “construe
all evidence in the light most favorable to the non-moving party, drawing all
inferences and resolving all ambiguities in its favor.” Dickerson v. Napolitano, 604
F.3d 732, 740 (2d Cir. 2010) (citing LaSalle Bank Nat’l Ass’n v. Nomura Asset
Capital Corp., 424 F.3d 195, 205 (2d Cir. 2005)). Once the moving party has
discharged its burden, the opposing party must set out specific facts showing a
genuine issue of material fact for trial. Wright v. Goord, 554 F.3d 255, 266 (2d Cir.
2009). “A party may not rely on mere speculation or conjecture as to the true
nature of the facts to overcome a motion for summary judgment,” as “mere
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, citations, and alterations omitted). In
addition, “only admissible evidence need be considered by the trial court in ruling
on a motion for summary judgment.” Porter v. Quarantillo, 722 F.3d 94, 97 (2d Cir.
2013) (internal quotation marks, citations, and alterations omitted). In opposing a
motion for summary judgment, a plaintiff “cannot rely on inadmissible hearsay.”
Burlington Coat Factory Warehouse Corp. v. Esprit de Corp., 769 F.2d 919, 924 (2d
B. Title VII Retaliation
Pursuant to Title VII, an employer may not discriminate against an employee
because the employee “has opposed any practice made an unlawful employment
practice by this subchapter, or because he has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under this
subchapter.” 42 U.S.C. § 2000e-3(a).
“Protected activity for purposes of Title VII and NYSHRL retaliation claims
encompasses an employee’s complaint to supervisors about alleged unlawful
activity, even if the activity turned out not to be unlawful, provided that the
employee ‘had a good faith, reasonable belief that he was opposing an employment
practice made unlawful by Title VII.’” Rodas v. Town of Farmington, 567 Fed. Appx.
24, 26 (2d Cir. 2014) (quoting McMenemy v. City of Rochester, 241 F.3d 279, 285 (2d
Cir. 2001)). “The objective reasonableness of a complaint is to be evaluated from the
perspective of a reasonable similarly situated person.” Kelly v. Howard I. Shapiro
& Assocs. Consulting Eng’rs, P.C., 716 F.3d 10, 17 (2d Cir. 2013).
Retaliation claims are evaluated under a burden-shifting analysis. See, e.g.,
Quinn v. Green Tree Credit Corp., 159 F.3d 759, 768–69 (2d Cir. 1998) (citations
omitted). First, a plaintiff must make out a prima facie case of retaliation by
showing: “(1) participation in a protected activity; (2) that the defendant knew of
the protected activity; (3) an adverse employment action; and (4) a causal
connection between the protected activity and the adverse employment action.”
McMenemy, 241 F.3d at 282–83. The defendant then must articulate a legitimate,
non-retaliatory reason for the alleged retaliatory conduct. Quinn, 159 F.3d at 768–
69 (citations omitted). If defendant meets that burden, “plaintiff must adduce
evidence sufficient to raise a fact issue as to whether the employer’s reason was
merely a pretext for retaliation.” Id. at 769 (internal quotation marks, alteration,
and citation omitted).
“A plaintiff making a retaliation claim under [Title VII] must establish that
his or her protected activity was a but-for cause of the alleged adverse action by the
employer.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2534 (2013).
“Close temporal proximity between the plaintiff’s protected action and the
employer’s adverse employment action may in itself be sufficient to establish the
requisite causal connection between a protected activity and retaliatory action.”
Kaytor v. Electric Boat Corp., 609 F.3d 537, 552 (2d Cir. 2010). However, the
temporal proximity must be “very close” to establish the requisite causality. Clark
Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273–74 (2001) (holding that 20 months
between the employee’s action and the alleged retaliatory action provided “no
causality at all.”). The Second Circuit has never drawn a “bright line to define the
outer limits beyond which a temporal relationship is too attenuated to establish a
causal relationship . . . .” Gorman-Bakos v. Cornell Coop. of Schenectady Cty., 252
F.3d 545, 554 (2d Cir. 2001). Rather, the court should “exercise its judgment about
the permissible inferences that can be drawn from temporal proximity in the
context of particular cases.” Espinal v. Goord, 558 F.3d 119, 129 (2d Cir. 2009).
Courts in this Circuit have thus found, variously, that three months is too great a
time to allow the inference of causation, Hollander v. Am. Cynamid Co., 895 F.2d
80, 85–86 (2d Cir. 1990) and that an eight month gap is sufficient, Grant v.
Bethlehem Steel Corp., 622 F.2d 43, 45–46 (2d Cir. 1980). See also Quinn, 159 F.3d
at 769 (discharge less than two months after sexual harassment complaint filed was
prima facie evidence of causal connection); Chamberlin v. Principi, 247 Fed. App’x
251, 254 (2d Cir. 2007) (no causal connection where plaintiff filed an EOOC
complaint and was terminated five months later). Alternatively, a plaintiff may
produce direct evidence of retaliatory animus against plaintiff by the defendant.
See Taylor v. Seamen’s Soc. for Children, 2013 WL 6633166, at *20 (S.D.N.Y. Dec.
Defendants make two primary arguments in support of their motion: 1) that
plaintiff is not an “employee” within the meaning of 42 U.S.C. § 2000e(f); and 2)
that plaintiff has failed to proffer any admissible evidence as to the causal
connection between her protected activity (reporting her harassment claims and
filing suit) and the adverse employment action (her termination). As such, they
argue that there are no triable issues of material fact and that summary judgment
as a matter of law is appropriate. For her part, plaintiff points to triable issues of
fact as to her status as an employee, and maintains that she has carried her burden
as to the causal connection.
Without deciding the issue, the Court assumes for this Opinion that plaintiff
is an employee within the meaning of 42 U.S.C. § 2000e(f). However, the Court
agrees with defendants; plaintiff has failed to make out a prima facie case of
To establish a prima facie case of retaliation, plaintiff must show: 1) that she
participated in a protected activity; 2) that the defendant knew of the protected
activity; 3) that she suffered an adverse employment action; and 4) a causal
connection between the protected activity and the adverse employment action.
McMenemy, 241 F.3d at 282–83. Defendant claims that plaintiff has not
established the fourth element—causal connection. Plaintiff proffers the following
in support of her claim: 1) a conversation she alleges occurred between Phillips and
Piperato in which Phillips inquired whether Piperato intended to keep plaintiff as
an employee if elected; 2) her entirely unsubstantiated belief that Phillips put
pressure on Wargo to terminate her employment; and 3) the temporal proximity of
her lawsuit and the adverse employment action.
Plaintiff’s evidence regarding the conversation between Phillips and
Piperato—which plaintiff presents as the sole evidence of retaliatory intent by
Phillips—is insufficient to raise a triable issue on that claim. Viewed in the light
most favorable to her, no causal connection between this conversation and the
adverse employment action is possible since neither Phillips nor Piperato
terminated Croci’s employment. 5 Plaintiff’s employment was terminated instead by
Wargo, who has presented uncontroverted evidence that he never discussed plaintiff
Plaintiff’s evidence as to this conversation is first, made up of inadmissible hearsay; and second,
based on an undated affidavit. 28 U.S.C. § 1746 allows unsworn declarations under penalty of
perjury in the following manner: “I declare (or certify, verify, or state) under penalty of perjury that
the foregoing is true and correct. Executed on (date). (Signature)”. To submit an undated affidavit is
a technical violation, and as such the affidavit should be excluded. However, courts have often
allowed an undated § 1746 affidavit as a discretionary matter. See, e.g., U.S. ex rel. Nat’l Dev. &
Constr. Corp. v. U.S. Envtl. Universal Servs., Inc., 2014 WL 4652712, at *3 n.2 (S.D.N.Y. Sept. 2,
2014); BMS Entm’t/Heat Music LLC v. Bridges, 2005 WL 2482493, at *2 n.1 (S.D.N.Y. Oct. 7, 2005).
The Court need not decide the question, because even assuming arguendo that Phillips inquired as
to whether Piperato would continue plaintiff’s employment, this does not raise a triable issue of
with Phillips. (See Wargo Dep. 32.) Plaintiff’s speculation that Wargo “agreed to
honor Phillips’ wish that Plaintiff be terminated, in exchange for Phillip’s [sic]
backing” (SAC ¶ 31) is inadmissible, and cannot support a triable issue.
Having failed to raise a triable issue of fact as to pressure exerted by Phillips
to terminate plaintiff’s employment, plaintiff’s final redoubt is her allegation of
temporal proximity. According to plaintiff, at the luncheon in March or April of
2012, she stated in Wargo’s presence that she had sexual harassment charges
pending against the town. (Her complaints had been filed in 2010, and her lawsuit
initiated in 2011.) There is no evidence that Wargo was ever made aware of any
additional facts relating to plaintiff’s claims, including her EEOC complaint in
2013. Following the November 2013 election, Wargo informed plaintiff (in
December 2013) that her employment would be terminated, and that he would,
instead, be hiring his long-time friend and supporter.
In determining whether temporal proximity, without more, can establish a
causal connection, the Court must use its “judgment about the permissible
inferences it can draw.” Espinal, 558 F.3d at 129. And while the Second Circuit
has no bright-line rule as to the “outer limits” of a claim based on temporal
proximity, the Supreme Court has held that twenty months is too long. Clark Cty,
532 U.S. at 273–74. In Clark County, twenty months had elapsed from the time
that plaintiff had filed an EEOC complaint until an adverse employment action was
taken. Despite the fact that her litigation was not resolved, then, the Court found
that temporal causality was lacking. Here, twenty or twenty-one months elapsed
between the time plaintiff allegedly informed Wargo of her complaint and her
termination—not the “very close” proximity required. Id.
In sum, plaintiff has proffered no evidence which would allow a reasonable
fact-finder to find that the but-for cause of her termination was retaliation. On the
other hand, defendants have put forward evidence showing legitimate reasons for
the adverse employment action—namely plaintiff’s support of defendant Wargo’s
political opponent, and defendant Wargo’s long personal relationship with plaintiff’s
replacement. The Court therefore GRANTS summary judgment to the defendants.
For the reasons discussed above, defendants’ Motion for Summary Judgment
is GRANTED. The Clerk of Court is directed to close the motion at ECF No. 54 and
terminate the action.
New York, New York
December 8, 2017
KATHERINE B. FORREST
United States District Judge
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