Nunez v. State Of New York et al

Filing 72

OPINION AND ORDER re: 46 MOTION for Summary Judgment, filed by Joseph A. Lima, Department of Corrections and Community Supervision, New York State Department of Corrections and Community Supervision. Defendants' motion for summar y judgment is GRANTED, and Nunez's claims are dismissed, albeit without prejudice to her refiling the NYCHRL retaliation and harassment claims in state court. The Clerk of Court is directed to terminate Docket No. 46, to close this case, and to mail a copy of this opinion to Nunez, and as further set forth herein. (Signed by Judge Jesse M. Furman on 8/11/2017) (ras)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
ROSA A. NUNEZ,
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Plaintiff,
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-v:
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NEW YORK STATE DEPARTMENT OF
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CORRECTIONS AND COMMUNITY SUPERVISION, :
et al.,
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Defendants.
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08/11/2017

14-CV-6647 (JMF)
OPINION AND ORDER

JESSE M. FURMAN, United States District Judge:
Plaintiff Rosa Nunez (“Plaintiff”), proceeding pro se, brings this action against her
employer, the New York State Department of Corrections and Community Supervision
(“DOCCS”), and her former supervisor, Joseph Lima (together with DOCCS, “Defendants”),
pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000 et seq.; the
New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 290 et seq.; and the New
York City Human Rights Law (“NYCHRL”), N.Y.C. Code § 8-101 et seq. In an earlier Opinion
and Order, familiarity with which is assumed, the Court dismissed all but three of Nunez’s
claims. See Nunez v. N.Y. State Dep’t of Corr. & Cmty. Supervision, No. 14-CV-6647 (JMF),
2015 WL 4605684 (S.D.N.Y. July 31, 2015). Defendants now move, pursuant to Rule 56 of the
Federal Rules of Civil Procedure, for summary judgment on those remaining claims: retaliation
claims against DOCCS under Title VII and against Lima under the NYSHRL and the NYCHRL;
and a sexual harassment claim against Lima under the NYCHRL. (Docket No. 46). For the
reasons discussed below, the Court holds that Nunez’s remaining federal claim fails as a matter

of law (as does her corresponding NYSHRL claim, which is subject to the same standards), and
declines to exercise supplemental jurisdiction over Nunez’s claims under the NYCHRL.
Accordingly, Defendants’ motion is granted.
BACKGROUND
The relevant facts, taken from the Amended Complaint and materials submitted in
connection with the pending motions, are either undisputed or described in the light most
favorable to Nunez. See, e.g., Costello v. City of Burlington, 632 F.3d 41, 45 (2d Cir. 2011). 1
Nunez is a DOCCS parole officer. (Docket No. 3 (“Am. Compl.”) ¶ 17). She alleges
that, between 2011 and 2013, Lima, who was her supervisor at the time, repeatedly expressed his
interest in her romantically and retaliated against her when she rebuffed him. (Id. ¶¶ 20-73).
The details of that conduct are largely irrelevant here. What is relevant is that, on July 11, 2013,
Nunez initiated an internal DOCCS investigation of Lima’s conduct and, nearly two weeks later,
she filed a formal complaint with the DOCCS Office of Diversity Management. (Docket No. 301, at 49, 58-63). A few months later, on October 2, 2013, Nunez also filed a complaint with the
New York State Division of Human Rights, accusing Lima of sexual harassment and retaliation.
(Id. at 30-42). Nunez alleges that, in the year that followed, Lima and his colleagues retaliated
against her in various ways. (Am. Compl. ¶¶ 74-121).

In connection with her opposition to Defendants’ motion, Nunez submits a transcript of
her deposition testimony with an errata sheet and various corrections. (See Docket Nos. 60-1 &
60-2). Nunez also claims, without any evidence, that her deposition was “forged” and “altered.”
(Docket No. 67, at 2-4). Although Nunez is entitled to make changes to her deposition testimony
within the allotted time-frame of thirty days under Rule 30(e) of the Federal Rules of Civil
Procedure, she “is not entitled to have [her] altered answers take the place of the original ones.
[Her] original deposition answers constitute the admissions of a party, and as such form part of
the record evidence.” CSC Holdings, Inc. v. Alberto, 379 F. Supp. 2d 490, 493, n.1 (S.D.N.Y.
2005) (internal quotation marks omitted). That said, Defendants concede that Nunez’s
amendments do not change her deposition testimony in any material way. (Docket No. 61, at 4).
1

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The Court previously found that that the “vast majority” of Nunez’s allegations of
retaliatory conduct did “not rise above the sorts of petty slights and personality conflicts that are
not actionable under Title VII and the NYSHRL.” Nunez, 2015 WL 4605684, at *14 (internal
quotation marks omitted). The Court concluded, however, that two of Nunez’s allegations had
“more force” and might “plausibly constitute” actionable conduct. Id. at *15. First, on one
occasion, Senior Parole Officer (“SPO”) Miguel Medina, Nunez’s immediate supervisor, “unsubmitted” two of her timesheets. (Am. Compl. ¶ 83; Docket No. 50-1 (“Nunez Depo.”), at 12628). Second, on another occasion, Nunez submitted a Violation of Parole (“VOP”), which
Medina and Lima did not process for almost one month in violation of standard protocol. (Am.
Compl. ¶¶ 62-64; Nunez Depo. 78-80). 2 The Court found that Nunez’s retaliation claims
survived on the basis of those allegations. See Nunez, 2015 WL 4605684, at *16. At the same
time, the Court pointedly noted that “[a] more developed record may well lead to the conclusion
that these actions are not materially adverse when viewed in the context of Plaintiff’s overall
employment environment.” Id.
LEGAL STANDARDS
Summary judgment is appropriate where the admissible evidence and pleadings
demonstrate “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 Johnson v. Killian, 680 F.3d 234, 236 (2d Cir.
2012) (per curiam). A dispute over an issue of material fact qualifies as genuine “if the evidence
is such that a reasonable jury could return a judgment for the nonmoving party.” Anderson v.

The Court found that one other allegation qualified as materially adverse: that Lima
intentionally reassigned her cases in a manner that would make her appear to be noncompliant
with home visit policies. See Nunez, 2015 WL 4605684, at *15. But the Court held that Nunez
could not establish a causal connection between any protected activity and that treatment because
the Complaint alleged only that the treatment occurred on an “ongoing basis.” Id. at 16 n.7.
2

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Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); accord Roe v. City of Waterbury, 542 F.3d 31, 35
(2d Cir. 2008). The moving party bears the initial burden of demonstrating the absence of a
genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “In
moving for summary judgment against a party who will bear the ultimate burden of proof at trial,
the movant’s burden will be satisfied if he can point to an absence of evidence to support an
essential element of the nonmoving party’s claim.” Goenaga v. March of Dimes Birth Defects
Found., 51 F.3d 14, 18 (2d Cir. 1995) (citing Celotex, 477 U.S. at 322-23); accord PepsiCo, Inc.
v. Coca-Cola Co., 315 F.3d 101, 105 (2d Cir. 2002) (per curiam).
In ruling on a motion for summary judgment, all evidence must be viewed “in the light
most favorable to the non-moving party,” Overton v. N.Y. State Div. of Military & Naval Affairs,
373 F.3d 83, 89 (2d Cir. 2004), and the court must “resolve all ambiguities and draw all
permissible factual inferences in favor of the party against whom summary judgment is sought,”
Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 83 (2d Cir. 2004).
Moreover, because Nunez proceeds pro se, the Court must grant her “special solicitude.” Tracy
v. Freshwater, 623 F.3d 90, 100-04 (2d Cir. 2010). Such special solicitude is not unlimited,
however. Provided the moving party has met its initial burden of demonstrating the absence of a
genuine issue of material fact, a pro se party opposing summary judgment must still “come
forward with evidence demonstrating that there is a genuine dispute regarding material fact.”
Bennett v. Bailey, No. 07-CV-7002 (PKC), 2010 WL 1459192, at *3 (S.D.N.Y. Apr. 9, 2010).
DISCUSSION
A. Retaliation Under Title VII
In order to establish a prima facie case of unlawful retaliation under Title VII, “an
employee must show that (1) he [or she] was engaged in protected activity; (2) the employer was

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aware of that activity; (3) the employee suffered a materially adverse action; and (4) there was a
causal connection between the protected activity and that adverse action.” Rivera v. Rochester
Genesee Reg’l Transp. Auth., 743 F.3d 11, 24 (2d Cir. 2014) (alterations omitted); accord
Schultz v. Congregation Shearith Israel of the City of N.Y., No. 16-3140-cv, slip op. at 22 (2d
Cir. August 10, 2017). If the plaintiff does so, “the burden of production shifts to the employer
to demonstrate that a legitimate, nondiscriminatory reason existed for its action.” Raniola v.
Bratton, 243 F.3d 610, 625 (2d Cir. 2001). And if the employer carries that burden, then the
burden shifts back to the plaintiff, who must establish “that the employer’s action was, in fact,
motivated by discriminatory retaliation.” Id. A plaintiff alleging retaliation in violation of Title
VII must show at the final step of the analysis that retaliation was a “but-for” cause of the
adverse action, not simply a “substantial” or “motivating” factor in the employer’s decision.
Univ. of Tex. Sw. Med. Ctr. v. Nassar, 113 S. Ct. 2517, 2526 (2013). “But-for” causation does
not, however, require proof that retaliation was the only cause of the employer’s action — it is
enough that the adverse action “would not have occurred in the absence of the” retaliatory
motive. Id. at 2533.
As the Court observed in its earlier Opinion, “the key question” in this case is whether
“any actions taken by Lima or [Nunez’s] other colleagues constitute ‘materially adverse’ actions
causally connected to her protected activities.” Nunez, 2015 WL 4605684, at *13. “Actions are
‘materially adverse’ if they are harmful to the point that they could well dissuade a reasonable
worker from making or supporting a charge of discrimination.” Hicks v. Baines, 593 F.3d 159,
165 (2d Cir. 2010) (internal quotation marks omitted); accord Schultz, No. 16-3140-cv, slip op.
at 23. This materiality requirement “reflects the principle that Title VII does not protect an
employee from all retaliation, but only retaliation that produces an injury or harm.” Rivera, 743

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F.3d at 24-25 (internal quotation marks omitted); accord Schultz, No. 16-3140-cv, slip op. at 23.
It helps to ensure that Title VII does “not set forth a general civility code for the American
workplace.” Hicks, 593 F.3d at 165 (internal quotation marks omitted). Thus, to qualify as
“material,” an “adverse employment action” must be “more disruptive than a mere
inconvenience or an alteration of job responsibilities.” Terry v. Ashcroft, 336 F.3d 128, 138 (2d
Cir. 2003). Examples 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.” Id. (alteration in
original). Materially adverse actions can also include “unchecked retaliatory co-worker
harassment, if sufficiently severe.” Rivera, 743 F.3d at 26 (internal quotation marks omitted).
“[M]aterial adversity is to be determined objectively, based on the reactions of a reasonable
employee.” Id. at 25. Nevertheless, “context matters, as some actions may take on more or less
significance depending on the context, and alleged acts of retaliation must be evaluated both
separately and in the aggregate, as even trivial acts may take on greater significance when they
are viewed as part of a larger course of conduct.” Id. (internal quotation marks, citations, and
brackets omitted).
Measured against these standards, and in light of the “more developed record” at this
stage of the proceedings, the two actions alleged by Nunez that the Court had earlier found could
plausibly qualify as “materially adverse” — SPO Medina’s conduct in “un-submitting” her
timesheets and Medina and Lima’s delay in processing a VOP she submitted — fall short.
Nunez, 2015 WL 4605684, at *15. 3 For starters, Nunez concedes that neither action resulted in

In her memorandum of law, Nunez also alleges, for the first time, that someone deleted
entries that she made with respect to two VOP reports from the case management system.
(Docket No. 60 (“Pl.’s Opp’n”), at 4). That allegation is not supported by admissible evidence.

3

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any negative consequence. (Nunez Depo. 79-81, 128-29). In the case of the timesheets, Nunez
testified that when she re-submitted her timesheets, Medina approved them, resulting in no loss
of pay or other adverse consequence. (Id. at 128-29). See also Tepperwien v. Entergy Nuclear
Operations, Inc., 663 F.3d 556, 570 (2d Cir. 2011) (holding that a rescinded disciplinary
counseling session did not constitute a material adverse employment action); Schiano v. Quality
Payroll Sys., Inc., 445 F.3d 597, 609 (2d Cir. 2006) (holding that a change in an employee’s
reporting structure was not an adverse employment action where it was rescinded after the
employee complained); Sanders v. N.Y.C. Human Res. Admin., 361 F.3d 749, 756 (2d Cir. 2004)
(holding that a jury could reasonably find that a negative performance evaluation did not
constitute material adverse action, where it was rescinded and destroyed two weeks after it was
issued). And with respect to the VOP allegation, Nunez admitted that she had signed and dated
the reports upon submission and that any delay in processing would not have resulted in negative
consequences for her. (Nunez Depo. 79 (“Q: So would it be fair to say you’re covered because
you dated that report? A: Yes.”)). Significantly, at no point after the alleged retaliation began
did Nunez receive a single negative evaluation from her supervisors; nor was she ever denied a
salary increase. (Id. at 68-69). Additionally, Nunez’s testimony that Lima and Medina
accommodated her complaints about her work conditions on many occasions undermines
Nunez’s contention that she suffered materially adverse employment actions at the hands of her
supervisors. (Id. at 100-101 (admitting that Lima assigned Nunez back to a two-person
partnership after she complained about being transferred to a three-person partnership); id. at

In any event, Nunez does not include any details with respect to the alleged incidents, such as the
who, when, or why. Additionally, she acknowledges that she “also heard about situations from
co-workers whose supervisors” did the same thing to them (id. at 4-5), undermining any
inference that the deletions were done in retaliation for her protected activity.

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101-02 (acknowledging that, after she complained, Medina and another officer reassigned a case
involving a parolee with a history of verbal and physical hostility towards women)).
In short, “even when viewed in the together in the light most favorable” to Nunez,
Defendants’ actions in this case “do not meet the standard for a materially adverse action.”
Schultz, No. 16-3140-cv, slip op. at 24. In arguing otherwise, Nunez asserts that, as a result of
the delay in processing her VOP, “her name appeared on a list of people whose reports were on
‘Alert’ status for being late” and that being on that list could “have negative consequences for
[her] when applying for a promotion or any special assignment or special unit, among others.”
(Docket No. 60 (“Pl.’s Opp’n”), at 4, 8). More drastically, Nunez claims that if the violator had
“committed a heinous crime” while her report was in “Alert” status, she could have been fired.
(Pl.’s Opp’n 4). But Nunez provides no evidence to back up these conclusory and hypothetical
assertions. And, in any event, Nunez does not explain who had access to the “Alert” status list or
how being placed on the list harmed her future employment prospects — particularly given her
own admission that the VOP report had been signed and dated in a way that would prevent any
delay from being attributed to her. (Nunez Depo. 79). On top of that, to the extent that Nunez is
alleging potential consequences down the road, it is well established that “fear of future possible
retaliation is insufficient” to establish a materially adverse employment action. Worrell v.
Cortines, No. 90-CV-3142 (JG), 1995 WL 1079717, at *12 (E.D.N.Y. Mar. 26, 1995).
None of that is to say that Defendants treated Nunez honorably. But Title VII’s antiretaliation provision provides protection, not from all unfair treatment — or even all retaliation
— but only from retaliation “that produces an injury or harm.” Burlington N. & Santa Fe Ry.
Co. v. White, 548 U.S. 53, 67 (2006); accord Schultz, No. 16-3140-cv, slip op. at 23. In this
case, Nunez fails to demonstrate that she suffered any such “injury or harm” — or that

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Defendants’ actions could “well dissuade a reasonable worker from making or supporting a
charge of discrimination.” Hicks, 593 F.3d at 165 (internal quotation marks omitted).
Accordingly, Nunez’s Title VII retaliation claim fails as a matter of law and must be dismissed.
B. Supplemental Jurisdiction
Having dismissed Nunez’s sole remaining federal claim, the Court must decide whether
to exercise supplemental jurisdiction over her claims against Lima under the NYSHRL and
NYCHRL. A district court “may decline to exercise supplemental jurisdiction over [a pendent
state law claim] if . . . the district court has dismissed all claims over which it has original
jurisdiction.” 28 U.S.C. § 1367(c)(3). The statute does not create “a mandatory rule to be
applied inflexibly in all cases.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988).
Nevertheless, “in the usual case in which all federal-law claims are eliminated before trial, the
balance of factors to be considered under the pendent jurisdiction doctrine — judicial economy,
convenience, fairness, and comity — will point toward declining to exercise jurisdiction over the
remaining state-law claims.” Id.; see also Kolari v. N. Y. Presbyterian Hosp., 455 F.3d 118, 123
(2d Cir. 2006) (reversing a district court decision to retain supplemental jurisdiction over state
law claims after dismissal of the federal claim, citing “the absence of a clearly articulated federal
interest”); Marcus v. AT&T Corp., 138 F.3d 46, 57 (2d Cir. 1998) (“In general, where the federal
claims are dismissed before trial, the state claims should be dismissed as well.”); Anderson v.
Nat’l Grid, PLC, 93 F. Supp. 3d 120, 147 (E.D.N.Y. 2015) (“In the interest of comity, the
Second Circuit instructs that absent exceptional circumstances, where federal claims can be
disposed of pursuant to Rule 12(b)(6) or summary judgment grounds, courts should abstain from
exercising pendent jurisdiction.” (citing cases) (internal quotation marks omitted)).

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Despite the general presumption, the Court concludes that, in the interest of judicial
economy, it should exercise supplemental jurisdiction over Nunez’s NYSHRL retaliation claim,
as it is well established that “[t]he standards for evaluating . . . retaliation claims are identical
under Title VII and the NYSHRL.” Vasquez v. Empress Ambulance Serv., Inc., 835 F.3d 267,
271 n.3 (2d Cir. 2016) (alterations in original). That is, given the Court’s decision on Nunez’s
Title VII claim, it would be the height of inefficiency to defer a decision on her NYSHRL claim
to a state court; instead, it is dismissed for the same reasons. By contrast, the Court declines to
exercise supplemental jurisdiction over Nunez’s claims under the NYCHRL, which are subject
to a different standard and must be analyzed separately. See, e.g., Mihalik v. Credit Agricole
Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013) (noting that NYCHRL claims
“require[] an independent analysis”). In light of that, and because the law governing claims
under the NYCHRL is still developing, Nunez’s NYCHRL claims present questions “best left to
the courts of the State of New York.” Giordano v. City of New York, 274 F.3d 740, 754 (2d Cir.
2001) (declining to reach the question whether the plaintiff had a valid claim under the
NYCHRL after dismissing his federal claim); Brief v. Albert Einstein Coll. of Med., 423 F.
App’x 88, 92-93 (2d Cir. 2011) (affirming dismissal of the plaintiff’s federal claims and
declining to decide his claims under state and city law on the ground that they were “arguably
governed by different legal standards” and the relevant law of New York was “still developing”);
St. Juste v. Metro Plus Health Plan, 8 F. Supp. 3d 287, 334 (E.D.N.Y. 2014) (declining
supplemental jurisdiction over a NYCHRL claim after dismissing claims under Title VII and the
NYSHRL). Accordingly, Nunez’s remaining NYCHRL claims — for retaliation and sexual
harassment — are dismissed without prejudice to her refiling them in state court.

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CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment is GRANTED,
and Nunez’s claims are dismissed, albeit without prejudice to her refiling the NYCHRL
retaliation and harassment claims in state court. The Clerk of Court is directed to terminate
Docket No. 46, to close this case, and to mail a copy of this opinion to Nunez.

SO ORDERED.
Date: August 11, 2017
New York, New York

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