Marquez v. The City Of New York , et al

Filing 73

MEMORANDUM AND ORDER granting 62 Motion for Summary Judgment. For the reasons articulated above, Defendants' motion for summary judgment is GRANTED with respect to Plaintiffs Title VII claims, and the Court declines to exercise supplemental jurisdiction over Plaintiffs remaining claims under the NYCHRL. The Clerk of Court is respectfully directed to terminate Dkt. No. 62 and to close this case. (Signed by Judge Alison J. Nathan on 9/12/2016) (tro)

USDCSDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _ _ _~il!!--'r..__,,..
DATE FILED: SEP 122016

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

Lisa Marquez,
Plaintiff,
14-CV-8185 (AJN)

-vMEMORANDUM
AND ORDER

City of New York et al.,
Defendants.

ALISON J. NATHAN, District Judge:
Plaintiff Lisa Marquez brings this action against her former employer the City of New
York (the "City"), the New York City Police Department (the "NYPD"), and Lieutenant Ruben
Castro in his individual capacity (together, "Defendants"), alleging that they discriminated
against her on the basis of gender by subjecting her to sexual harassment and then unlawfully
retaliated when she complained of the harassment. Marquez asserts claims under Title VII of the
Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e, et seq., and the New York City
Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code§ 8-107, et seq. Before the Court is
Defendants' motion for summary judgment on all claims. Dkt. No. 62. For the reasons
articulated below, Defendants' motion is GRANTED.

I.

Background
The following is drawn from the parties' Local Rule 56.1 statements, the deposition

testimony of Plaintiff Lisa Marquez and Defendant Ruben Castro, and other exhibits submitted
by the parties. 1
1

The Court notes that Plaintiffs Rule 56.1 response and supplemental affirmative statement cite, in several
instances, solely to allegations contained in Plaintiffs unverified complaint. See, e.g., Plaintiffs Response to
Defendants' Statement of Undisputed Material Facts ("PL Resp.") iii! 76-77, 132-33; Plaintiffs Statement of
Material Facts ("PL Statement") iii! 31-32, 48-49. On a motion for summary judgment, however, "allegations in an
unverified complaint cannot be considered as evidence." Continental Ins. Co. v. Atlantic Cas. Ins. Co., No. 07-cv3635, 2009 WL 1564144, at *1 n.1 (S.D.N.Y. Jun. 4, 2009) (citing Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir.

1

At all times relevant to this action, Plaintiff Marquez was employed as a detective with
the NYPD. Pl. Resp.

iii! 3-6.

From November 2010 until her retirement in August 2013,

Detective Marquez was assigned to the 30th Precinct Detective Squad in northern Manhattan
(the "30th Squad"). Pl. Resp.

iii! 4-6, 169.

Defendant Castro, a Lieutenant, served as

commander of the 30th Squad from July 2006 until December 2011, and then again from
February 2012 until his own retirement in November 2013. Id.

iii! 13-15; see also Transcript of

Deposition of Ruben Castro, dated September 9, 2015 ("Castro Dep."), at 28. In his capacity as
commander, Castro supervised the 30th Squad's detectives and police officers, to some extent
through his subordinate Sergeant Peter Holness. Castro Dep. at 28-29, 33, 40. During Castro's
tenure as commander, the 30th Squad generally included approximately fifteen to twenty
detectives. Id. at 29. With the exception of Plaintiff Marquez, all of these detectives were male.
Id. at 29, 33; Pl. Resp.

if 140.

During Marquez's first year with the 30th Squad, she and Castro maintained a
"professional" working relationship without any notable problems. Pl. Resp. at if 16. In
December 2011, Castro temporarily retired to attend to a family illness. Pl. Resp. if 14. Castro
returned to the 30th Squad in February 2012. Id. Between Castro's return in February and
roughly December 2012, Castro and Marquez were periodically involved in a variety of
workplace incidents that form the basis for this action. Pls. Resp.

A.

if 168.

February 2012 Incidents

On February 9, 2012, Marquez and Detective Glenn Morales, also of the 30th Squad,
had a conversation in the 30th Precinct about plans to lose weight during the new year. Pl. Resp.

if 22; Transcript of Deposition of Lisa Marquez, dated October 2, 2015 ("Marquez Dep.") at 41.
Marquez testified that Castro, who was in the vicinity of the conversation, interjected, telling
Marquez she that did not need to lose weight and that he "like[ d]" her the way she was - "nice
and tight." Pl. Resp.

if 23; Marquez Dep. at 41-42. Marquez testified that she was offended by

1995)). Accordingly, the Court has not relied on any such allegations or credited any purported facts based
exclusively on complaint allegations.

2

the comment, in part because she had never heard Castro make a similar remark to any male
member of the 30th Squad, and that she told Castro "not to talk to her that way." PL Statement

if 4; Marquez Dep. at 41-42. Castro, for his part, denied ever making such a remark. PL
Response at if 24; Castro Dep. at 131.
On February 15, 2012, Detective Morales, while eating lunch in the lounge area of the
male detectives' locker room, asked Marquez to accompany him during his investigation of
certain cases that afternoon. PL Resp. ifif 25-26; Marquez Dep. at 50. Marquez agreed, and went
to retrieve her firearm from her locker. 2 PL Resp.

if 27. After opening her belt to slip her

firearm through a loop and then adjusting it, Marquez asked Morales how long the investigations
would take because, among other things, she had not yet had a chance to eat her own lunch. PL
Resp.

if 28; PL Statement if 6. Marquez testified that Castro, overhearing the question,

commented, "What are you talking about you['re] hungry, you came with your pants all open
from the lunch room with Glen [Morales]. What you mean you were eating." 3 Marquez Dep.
at 55; PL Resp.

if 30. Marquez testified that she interpreted Castro's comment as a reference to

oral sex, and said to Castro, "Don't fucking talk to me that way." PL Resp.

if 31; Marquez Dep.

2

Because the 30th Precinct did not have a separate locker room for female detectives, Marquez shared a locker
room with her male colleagues until at least November 2012, locking the door as necessary to ensure privacy when
changing clothes. Pl. Resp. iii! 137, 139; Castro Dep. at 69-70. It is undisputed that the 30th Squad detectives,
including Marquez, favored this arrangement over the option of Marquez using the Precinct's female police officer
locker room because the detectives, as a separate command, "preferred to stay together." Pl. Resp. iJ 138.
3

Plaintiff asserts both in her Local Rule 56.1 materials and in her opposition brief that Marquez further testified that
Castro also told her, "When you had your pants opened, Glenn was eating you." See Pl. Resp. i! 30; Pl. Statement iJ
7; Plaintiffs Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment ("Opp.") at 6.
That is an inaccurate representation of Marquez's deposition testimony. While it is true that Marquez first testified
at deposition that Castro "basically told [her]," '"[W]hen you had your pants open, Glen was eating you"' - "in
somewhat of those words," see Marquez Dep. at 50-51, Marquez was subsequently asked to specify "precisely, to
the best of [her] recollection, what words [Castro] use[ d]." Id. at 51. In response, Marquez testified that Castro
said, "'What do you mean that you have to eat. When you had your pants open, you were eating or he was eating.'
I'm somewhat nervous, so somewhat he said that." Id. at 51. Later in her deposition, Marquez testified, and the
parties now agree in their Local Rule 56.1 materials, that Castro said, "'[W]hat are you talking about you['re]
hungry, you came with your pants all open from the lunch room with Glenn. What you mean you were eating."'
Marquez Dep. at 55; Pl. Resp. iJ 30. The Court does not view the slightly varying versions of Castro's remark
proffered by Plaintiff as material to the outcome of this case.

3

at 51, 58. Marquez further testified that Castro then quickly left the precinct. Marquez Dep. at
51. Castro, again, denied that this exchange took place. Pl. Resp. at if 36; Castro Dep. at 67.
Marquez also testified that, on as many as three to four occasions, Castro began
conversations with or made remarks to Marquez and other detectives while in or coming from
the locker room "partially undressed." Pl. Resp.

if 38; Marquez Dep. at 69. During one such

incident in February 2012, Marquez testified, she and several of her male colleagues were sitting
at their desks in the 30th Precinct when Castro entered the locker room to take a shower. Pl.
Resp.

ifif 37-41. Shortly thereafter, Castro opened the locker room door while shirtless and with

a towel wrapped around his waist and asked Marquez - whose desk was less than twenty feet
from the locker room door- to take a message if he received any calls while in the shower. Pl.
Resp.

ifif 37-41. Castro did not make any sexual remarks or innuendoes at that time. Marquez

Dep. at 61.
Marquez later reported to the NYPD Office of Equal Employment Opportunity ("EEO")
that, on another occasion, Castro left the locker room with his "tank top open," flexed his
muscles, and said to Marquez, "You're invited to the gun show, [do] you want to feel it." Pls.
Resp. at if 42; Investigating Officer's Report, EEO, dated November 7, 2012, at DEF 0286 (Dkt.
No. 65-18). Such encounters, Marquez reported, made her feel "uncomfortable." Id.
Marquez also testified that, at some point in February 2012, she observed Castro in the
30th Precinct massaging the back of Irene Gadsden, a female Police Administrative Assistant
who had been assigned to the Precinct since October 2007. Pl. Resp. ifif 43-44; Marquez Dep. at
65. During the massage, Marquez testified, Castro's fingers "went ... past the belt area, down
[Gadsden's] pants." Marquez Dep. at 65; Pl. Resp.

if 44. Marquez did not observe Gadsden

appearing uncomfortable or objecting to Castro's conduct, but nevertheless felt that the conduct
was inappropriate for the workplace and was offended by it. Marquez Dep. at 65, 67-68. During
two later interviews with EEO, Gadsden reported only that Marquez had massaged her shoulders
on several occasions. See Investigating Officer's Report, EEO, dated April 27, 2013, at DEF
0334 (Dkt. No. 65-14). Gadsden asserted during one such interview that these massages did not

4

make her feel "any way" in particular, that she did not feel that they were sexual in nature, and
that she was "very comfortable" working with Castro. Id. at 0334-335; see also Pl. Resp. at if 48.
Castro, for his part, denied ever putting his hands down Gadsden's pants, but admitted
occasionally placing his hands on her shoulders and at least once, with Gadsden's pennission,
applying pressure to her upper back to relieve a muscular knot. Castro Dep. at 122-23;
Investigating Officer's Report, EEO, dated February 26, 2013 at DEF 0320 (Dkt. No. 65-12).

B.

First Complaint to Office of Equal Employment Opportunity

On February 27, 2012, Marquez filed a complaint with the EEO, alleging that Castro had
made a sexual comment to her two to three weeks earlier. PL Resp.

if 52; see also Investigating

Officer's Report, EEO, dated March 15, 2012, at DEF 0254 (Dkt. No. 65-15). Marquez was
scheduled for an interview with EEO on March 8, 2012. PL Resp.

if 53.

At some point prior to

the scheduled interview, however, Marquez had a conversation with Detective Ervin Urbina, also
of the 30th Squad, during which Urbina encouraged Marquez to give union personnel an
opportunity to address Marquez's concerns informally. Pl. Resp. if 55. On the day before her
scheduled interview, March 7, 2012, Marquez withdrew her complaint against Castro. Pl. Resp.

if 54; see also Investigating Officer's Report, EEO, dated March 7, 2012, at DEF 0255 (Dkt. No.
65-16).
C.

Castro's Subsequent Interventions in Marquez's Investigations

Sometime later, in March 2012, Marquez interviewed a robbery victim in the 30th
Precinct. Pl. Resp.

if 60.

As part of her investigation, Marquez requested that the victim

accompany her to the crime scene in a patrol car to look for the perpetrator. Marquez Dep. at 95.
The victim, however, was reluctant to return to the scene. Id. Marquez testified that, as she
attempted to console and persuade the victim to accompany her to the scene, Castro, overhearing
the conversation, began to yell at the victim that the victim should not be scared to join Marquez
and that victim was "going to go right now." Id. at 95-96; PL Statement if 27. Marquez then
requested that one of her colleagues who was nearby join them in the patrol car for the search for
the perpetrator. Marquez Dep. at 96. In response, Marquez testified, Castro started to yell at
5

Marquez, accusing her of trying to "milk this," asking how long she thought the search would
take. Id. at 96. Marquez felt that Castro was "interfering" in her investigation and "sabotaging
[her] case." Id. at 95-96. Castro testified that he never yelled at Marquez while she was
interviewing a robbery victim. Castro Dep. at 79.
On another occasion, Marquez arrested an individual suspected of another robbery.
Castro Dep. 80-81. During an ensuing line-up conducted by Marquez and supervised by Castro,
the robbery victim identified the suspect as a friend rather than as the perpetrator of the crime.
PL Resp.

ifi! 70-74; Castro Dep. at 80-81.

Marquez nevertheless wished to interview the suspect

further. Castro Dep. at 80-81. Castro informed Marquez, with the suspect still in the room, that
she could not continue to interview the suspect and ordered the suspect released. Castro Dep. at
80-81. Castro later testified that at the time of his exchange with Marquez the suspect had
already been in the precinct for over twenty-four hours and that Castro was concerned about
holding the suspect illegally. Castro Dep. at 80-82; PL Resp.
D.

if 75.

May - November 2012 Incidents

From late March 2012 to late May 2012, Marquez was on leave from work recuperating
from knee surgery. PL Resp.

if 80.

Upon her return to work, Marquez was placed on restricted

duty, precluding her from actively making arrests. PL Resp.

ifi! 81-82.

Shortly thereafter, Castro

had a meeting with Marquez in his office to discuss her recent arrest history. PL Resp. if 83.
Marquez testified that when she explained that she could not make arrests while on restricted
duty, Castro told her that she was "useless" and "no good on the job." PL Resp.

ifi! 83-84,

Marquez Dep. at 98-99; Investigating Officer's Report, EEO, dated November 17, 2012, at
DEF0286 (Dkt. No. 65-18). Marquez also testified that later, in July 2012, Castro asked
Marquez how long she was going "to milk this injury." Marquez Dep. at 99; PL Resp.

if 87.

Castro denied making any such comments. Castro Dep. at 93.
Sometime after May 2012, Castro informed Marquez that he had been ordered to change
her schedule, that she could no longer work the alternating shifts that she had been working prior
to her injury, and that she would have to choose a single afternoon, evening, or overnight shift.
6

Pl. Resp.

iii!

93-95. Marquez selected an 11 :30 AM to 8:00 PM shift and was assigned

accordingly. Id.

ifi! 96-97.

In late October 2012, Sergeant Holness informed Marquez that her

shift had been changed again at the directive of Castro and that she would be assigned to work a
4:30 PM - 1:00 AM shift. Id.

ifi!

99-101. Castro testified that the shift reassignment was

intended to, among other things, prevent Marquez from accumulating excessive overtime.
Castro Dep. at 95-96. Marquez testified that she believed that her shifts were changed in
response to her internal complaint about Castro. Investigating Officer's Report, EEO, dated
November 17, 2012, at DEF 0286 (Dkt. No. 65-18).
On November 1, 2012, Sergeant Holness advised Marquez of an assignment to complete
"profile reports," an administrative task, for Castro (the "November 1 Assignment"). Pl. Resp.

if 104; Castro Dep. at 101.

On November 6, 2012, Castro asked for the completed November 1

Assignment, and Marquez indicated that she had not done it. Pl. Resp. iii! 105-07. Marquez
testified that Castro then asked her repeatedly why she had not completed the November 1
Assignment, despite Marquez's explanation that she did not know how to complete profile
reports and lacked necessary access to certain codes. Marquez Dep. at 102-03. Marquez further
testified that, during this exchange, Castro "took his fists out." Id. at 103. When Marquez tried
to leave Castro's office to call her union representative and report the incident, she testified,
Castro got up from his seat and told Marquez, "Sit the hell down," "I'll tell you when you need a
union rep," and that he was going to suspend her. Id. at 103-04. Marquez testified that she
nevertheless walked out of Castro's office to call her representative, prompting Castro to follow
yelling her name. Id. at 103. Marquez further stated that she entered the locker room to try to
call her union representative and locked the door behind her. Id. at 104. According to
Marquez's testimony, Castro then began banging on or kicking the door and shouting at her to
"get out." Id. at 104-05. While Marquez was still in the locker room, she received a call on her
cell phone from the 30th Squad's Captain, who instructed her to leave the office. Id. at 105.
Marquez further testified that she then attempted to leave the office but forgot her keys in the
locker room. Id. When she tried to return for her keys, Marquez testified, Castro initially
7

prevented her from entering the locker room and then resumed "banging on the door" and
eventually got "up in [Marquez's] face" and started to yell at her to "get out, get out." Id.
Castro testified, with regard to this incident, that he initially tried to explain to Marquez
in his office that the November 1 Assignment did not require certain steps that she thought it did
and that she should be able to complete it. Castro Dep. at 101-02. He further testified that
Marquez then told him that she would not speak to him without a union representative, "stonned
out" of Castro's office, refused an order to return, and "locked herself' in the locker room for up
to thirty minutes to an hour. Id. at 102; see also Command Discipline Election Report, dated
November 6, 2012, at DEF 0378 (Dkt. No. 65-17). Castro denied kicking the locker room door,
yelling or swearing at Marquez, and threatening or intimidating Marquez during any of this. Id.
at 103-04. Castro also testified that his superiors, when informed of the incident, directed Castro
to "write up" Marquez, which he did. Id. at 104.
Castro completed a Command Discipline Election Report (the "CD") noting that
Marquez had violated NYPD rules and procedures by being "discourteous to a supervisor."
Command Discipline Election Report, dated November 6, 2012 at DEF 03 78 (Dkt. No. 65-17);
see also Castro Dep. at 103, 114. Marquez testified that the CD was never actually issued to her,

discussed with her, or adjudicated. Marquez Dep. at 114.

E.

Second EEO Complaint and Subsequent Incidents

On November 7, 2012, Marquez contacted EEO and requested that the office reopen her
February 2012 complaint against Castro. PL Resp.

if 130; Investigating Officer's Report, EEO,

dated November 17, 2012 at DEF 0285 (Dkt. No. 65-18). EEO personnel interviewed Marquez
on December 10, 2012, and, over the next several months conducted a preliminary investigation
into her allegations, interviewing Castro, Gadsden, and several 30th Squad detectives. See
Investigating Officer's Report, EEO, dated February 26, 2013 at DEF 0318-20 (Dkt. No. 65-12).
Marquez testified that, in December 2012, Castro infonned Marquez he wanted the
hanging plants that she kept in the precinct removed. PL Resp.

if 149; Marquez Dep. at 125-26.

Marquez further testified that she did not remove her plants and, thereafter, Castro asked her
8

approximately once a week to take the plants down. Pl. Resp. iii! 150-51. Castro denied ever
telling Marquez to remove her plants. Id.

if 152.

Marquez also testified that, in early December 2012, an office holiday party was held in a
timeslot during which she was schedule to work. Marquez Dep. at 122; Pl. Resp. iii! 153, 155.
Marquez further testified that Castro reminded her prior to the party that she was not permitted to
change shifts in order to attend the party. Id. at 124-25. Four male detectives who originally had
been scheduled to work during the party, Marquez testified, were permitted to change shifts and
attend the party after finding a colleague to fill in for them. Pl. Resp. iii! 156-58. Castro testified
that he did not deny Marquez the opportunity to attend the party. Pl. Resp. if 161.
F.

EEO Recommendations and Aftermath

By reports dated February 26, 2013 and May 20, 2013, EEO personnel recommended that
the preliminary investigation into Marquez's November 2012 complaint be closed, with no full
investigation required. See Investigating Officer's Report, EEO, dated February 26, 2013, at
DEF 0320 (Dkt. No. 65-12); Investigating Officer's Report, EEO, dated May 20, 2013, at DEF
0344 (Dkt. No. 65-20). EEO found no case of employment discrimination but did issue a "reinstruct[ion]"to Castro regarding the admitted physical contact with Gadsden. Investigating
Officer's Report, EEO, dated February 26, 2013 at DEF 0320 (Dkt. No. 65-12). On May 9, 2013
the Deputy Commissioner of EEO issued a letter to Marquez stating that her complaint "could
not be corroborated" and "did not rise to the level of employment discrimination" under Title VII
or state or local law. See Letter from Neldra M. Zeigler to Marquez, dated May 9, 2013, at DEF
0382 (Dkt. No. 65-21); Pl. Resp.

if 167.

Marquez testified that, between December 2012 and August 2013, she continued to work
under Castro's supervision, and had no complaints about any of her interactions with him. Pl.
Resp.

if 169. Marquez further testified that the only time periods during which she experienced

problems working with Castro were February 2012 and May- December 2012. Id.

if 168.

Marquez retired from the NYPD in good standing in August 2013. Marquez Dep. at 26, 114,
127.

9

Marquez initiated the instant action on October 14, 2014. Dkt. No. 1.

II.

Legal Standard
Under Federal Rule of Civil Procedure 56, summary judgment is warranted only ifthe

submissions of the parties taken together "show that there is no genuine issue as to any material
fact and that the movant is entitled to judgment as a matter oflaw." Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986); Jeffreys v. City ofNY., 426 F.3d 549, 553 (2d Cir. 2005). The movant
bears the initial burden of "demonstrat[ing] the absence of a genuine issue of material fact." Id.
at 323. A fact is material only if it "might affect the outcome of the suit under the governing
law," and an issue of fact is genuine "ifthe 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).
A moving party may satisfy its burden by demonstrating that the non-moving party, "after

adequate time for discovery," has "fail[ ed] 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." Celotex, 477 U.S. at 322; see also Selevan v. NY. Thruway Auth., 711
F.3d 253, 256 (2d Cir. 2013) ("A defendant is entitled to summary judgment where the plaintiffs
have failed to come forth with evidence sufficient to permit a reasonable juror to return a verdict
in his or her favor on an essential element of a claim on which the plaintiffs bear the burden of
proof.") (internal quotation marks omitted).
If the movant satisfies its burden, the nonmovant must then "do more than simply show
that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 586 (1986). To defeat a motion for summary judgment, it must "set
fo1ih specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 250
(internal quotation marks and citation omitted). In making this showing, the non-moving party
cannot rely either on the "mere allegations or denials of his pleadings," see id. at 256, or on
"mere speculation or conjecture as to the true nature of the facts," Knight v. US. Fire Ins. Co.,
804 F.2d 9, 12 (2d Cir. 1986); see also Ridinger v. Dow Jones & Co., Inc., 651F.3d309, 317 (2d
Cir. 2011) (noting that "conclusory statements, conjecture, and inadmissible evidence are
10

insufficient to defeat summary judgment") (internal quotation marks and citation omitted).
Given the materiality requirement, moreover, "[ f]actual disputes that are irrelevant or
unnecessary" do not preclude the entry of summary judgment. Anderson, 477 U.S. at 248.
"When considering a motion for summary judgment, a court must construe the evidence
in the light most favorable to the nonrnoving party, drawing all inferences in that party's favor."
Jeffreys, 426 F.3d at 553; see also Anderson, 477 U.S. at 255 (at summary judgment, "[t]he
evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his
favor"). "Assessment of credibility and choices between conflicting versions of the events are
matters for the jury, not for the court on summary judgment." Rule v. Brine, Inc. 85 F.3d 1002,
1011 (2d Cir. 1996); see also Hayes v. NYC Dep't ofCorrs., 84 F.3d 614, 619 (2d Cir. 1996)
(at summary judgment, court "should not weigh the evidence or assess the credibility of
witnesses."). The question for the Court at this stage is "not whether ... the evidence
unmistakably favors one side or the other but whether a fair-minded jury could return a verdict
for the plaintiff on the evidence presented." Anderson, 477 U.S. at 252. Still, the "mere
existence of a scintilla of evidence in support of the plaintiffs position will be insufficient; there
must be evidence on which the jury could reasonably find for the plaintiff." Id.
The Court of Appeals "has repeatedly emphasized the need for caution about granting
summary judgment to an employer in a discrimination case ... where the merits tum on a
dispute as to the employer's intent." Gorzynsld v. JetBlue Airways Corp., 596 F.3d 93, 101 (2d
Cir. 2010) (internal quotation marks omitted). "Because direct evidence of an employer's
discriminatory intent will rarely be found, affidavits and depositions must be carefully
scrutinized for circumstantial proof, which, if believed, would show discrimination." Schwapp v.
Town ofAvon, 118 F.3d 106, 110 (2d Cir. 1997) (internal quotation marks omitted).
Nevertheless, "summary judgment remains available for the dismissal of discrimination claims in
cases lacking genuine issues of material fact." McLee v. Chrysler Corp., 109 F.3d 130, 135 (2d
Cir. 1997); see also Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001) ("It

11

is now beyond cavil that summary judgment may be appropriate even in the fact-intensive
context of discrimination cases.").

III.

Discussion
A.

Improper Defendant

As an initial matter, all claims asserted against the NYPD may be dismissed out of hand.
Section 396 of the New York City Charter provides in pertinent part that "[a]ll actions and
proceedings for the recovery of penalties for the violation of any law shall be brought in the
name of the city of New York and not in that of any agency." N.Y.C. Charter Ch. 17 § 396.
This provision "has been construed to mean that New York City departments, as distinct from
the City itself, lack the capacity to be sued." Ximines v. George Wingate High Sch., 516 F.3d
156, 160 (2d Cir. 2008); see also Jenkins v. City ofNY., 478 F.3d 76, 93 n.19 (2d Cir. 2007)
(noting that "NYPD is a non-suable agency of the City"); Pesce v. NY. C. Police Dep 't, 159 F.
Supp. 3d 448, 459 (S.D.N.Y. 2016) (granting summary judgment on all discrimination claims
against NYPD). Accordingly, Plaintiff's claims against the NYPD must be dismissed.
The Court will consider in tum Plaintiff's claims against the remaining Defendants.

B.

Title VII Hostile Environment Sexual Harassment Against the City4

In order to establish a claim for hostile work environment under Title VII, a plaintiff must
"show that (1) 'the workplace is permeated with discriminatory intimidation, ridicule, and
insult ... that is sufficiently severe or pervasive to alter the conditions of the victim's
employment and create an abusive working enviromnent,' and (2) 'a specific basis exists for
imputing the conduct that created the hostile environment to the employer."' Lekettey v. City of

4

Defendants argue that "[P]laintiffs claims under Title VII against defendant Castro should be dismissed."
Defendants' Memorandum of Law in Support of Their Motion for Summary Judgment ("Br.") at 21. The Court
construes Plaintiffs Complaint to assert Title VII claims only against the City and the NYPD. See Complaint (Dkt.
No. 1) ("Compl.") iii! 67-72. To the extent, however, that Plaintiff does assert Title VII claims against Defendant
Castro, such claims are dismissed, as it is well-settled that "Title VII does not impose liability on individuals." Lore
v. City ofSyracuse, 670 F.3d 127, 169 (2d Cir. 2012) (collecting cases); see also Patterson v. Cty. of Oneida, NY.,
375 F.3d 206, 221 (2d Cir. 2004) (noting that '"individuals are not subject to liability under Title VII"') (quoting
Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir. 2000) (per curiam)).

12

NY, 637 F. App'x 659, 661 (2d Cir. 2016) (ellipsis in original) (quoting Howley v. Town of
Stratford, 217 F.3d 141, 153-54 (2d Cir. 2000)). Further, "it is axiomatic that in order to

establish a sex-based hostile work environment under Title VII, a plaintiff must demonstrate that
the conduct occurred because of her sex." Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002)
(internal quotation marks and citation omitted).
"The kinds of workplace conduct that may be actionable under Title VII include
unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a
sexual nature." Redd v. NY Div. ofParole, 678 F.3d 166, 175 (2d Cir. 2012) (internal quotation
marks, brackets, and ellipsis omitted). In considering whether a plaintiff has met its burden as to
the sufficiency of the purported harassment, "courts should 'examin[ e] the totality of the
circumstances, including: the frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably
interferes with the victim's [job] performance."' Rivera v. Rochester Genesee Reg'l Transp.
Auth., 743 F.3d 11, 20 (2d Cir. 2012) (alterations in original) (quoting Hayut v. State Univ. of

NY, 352 F.3d 733, 745 (2d Cir. 2003)); see also Redd, 678 F.3d at 176 (given the "totality of the
circumstances" standard, the "court must take care ... not to view the individual incidents in
isolation" and "should not view the record in piecemeal fashion") (internal quotation marks and
citation omitted). "The sufficiency of a hostile work environment claim is subject to both
subjective and objective measurement: the plaintiff must demonstrate that she personally
considered the environment hostile, and that the environment rose to some objective level of
hostility." Leibovitz v. NYC Transit. Auth., 252 F.3d 179, 188 (2d Cir. 2001). "As a general
rule, incidents must be more than episodic; they must be sufficiently continuous and concerted in
order to be deemed pervasive. Isolated acts, unless very serious, do not meet the threshold of
severity or pervasiveness." Alfano, 294 F.3d at 375 (internal quotation marks and citation
omitted). Still, "it is well settled in this Circuit that even a single act can meet the threshold if,
by itself, it can and does work a transformation of the plaintiff's workplace." Id. "In short, a
plaintiff alleging a hostile work environment 'must demonstrate either that a single incident was
13

extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted to
have altered the conditions of her working environment.'" Id. (quoting Cruz v. Coach Stores,
Inc., 202 F.3d 560, 570 (2d Cir. 2000)). The "standards for judging hostility are sufficiently

demanding to ensure that Title VII does not become a general civility code," and, "[p ]roperly
applied, they will filter out complaints attacking the ordinary tribulations of the workplace, such
as the sporadic use of abusive language, gender-related jokes, and occasional teasing." Faragher
v. City ofBoca Raton, 524 U.S. 775, 788 (1998) (internal quotation marks and citations omitted).

Here, Defendants argue persuasively that the evidence that Plaintiff has adduced, even
taken in the light most favorable to Plaintiff, reveals only conduct that is from an objective
standpoint insufficiently pervasive or severe to constitute hostile environment sexual harassment.
See Br. at 6-9; Defendants' Reply Brief in Support of Their Motion for Summary Judgment

("Reply Br.") at 1-3. In support of her hostile work environment claim, Plaintiff points to
approximately six to seven discrete incidents involving Castro:
•

Castro's February 9, 2012 comment that Plaintiff did not need to lose weight and
that he "liked her the way she was" - '"nice and tight,"' see Opp. at 5-6;

•

Castro's February 15, 2012 remark, "'What are you talking about you['re]
hungry, you came with your pants all open from the lunch room with Glen
[Morales]. What you mean you were[] eating,"' see id. at 6;

•

A February 2012 incident in which Castro requested, while standing in the locker
room door shirtless and wearing a towel around his waist, that Plaintiff take a
message if anyone called while he was in the shower, id. at 7.

•

Two or three additional, undated occasions on which Castro initiated
conversations with or made comments to Plaintiff while "partially undressed,"
including one on which Castro, coming out of the locker room in a tank top,
flexed his muscles and said to Plaintiff, "'You're invited to the gun show, you
want to feel it?"', id. at 7-8; and

•

An occasion in February 2012 on which Plaintiff observed Castro massaging
Gadsden's back and, in so doing, putting his fingers "'past ... [the] belt area, and
down her pants,'" id. 8.

14

Crediting Plaintiff's version of these events, as it must at the summary judgment stage,
the Court concludes that no reasonable jury could find that they rise to the level of actionable
hostile environment harassment when considered under the totality of the circumstances. First,
there is no genuine dispute that, viewed in the context of Marquez's nearly three-year tenure
working under Castro's supervision on the 30th Squad, the incidents constituting the allegedly
discriminatory conduct were infrequent, isolated, and limited to one relatively short time span,
occurring largely- if not exclusively - during an approximately three-week period in February
2012. Indeed, Marquez testified that, other than "two or three" unspecified, undated occasions
on which Castro had a conversation with Marquez while in the locker room and "partially
undressed," Marquez did not experience any purportedly "sexually harassing acts" before or
after February 2012. Marquez Dep. at 40, 69, 77, 127-28. As the Court of Appeals has
recognized, episodes of purported harassment that "were few and occurred over a short span of
time," do not support a demonstration of pervasiveness. See Marmol v. Costco Wholesale Corp.,
364 F.3d 54, 58-59 (2d Cir. 2004) (no hostile environment when supervisor, within a one-month
period, offered plaintiff various workplace privileges and monetary benefits in exchange for sex;
threatened plaintiff with reassignment when she rejected him; and reduced plaintiff's hours);
Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 69 (2d Cir. 2000) ("Incidents that are

few in number and that occur over a short period of time may fail to demonstrate a hostile work
environment.") (internal quotation marks omitted); Spina v. Our Lady of Mercy Med. Ctr., 97-cv4661, 2003 WL 22434143, at *3 (S.D.N.Y. Oct. 23, 2003), aff'd 120 F. App'x 408 (2d Cir.
2005) (summary judgment appropriate where plaintiff could "positively recall at most six
specific instances of harassment" over 15 months of employment) (emphasis in original).

15

Of course, the hostile environment inquiry is not limited to "how long" the relevant
course of conduct lasts; the "offensiveness of the ... actions complained of' also requires careful
consideration. See Whidbee, 223 F.3d at 69; see also Cruz, 202 F.3d 570 (even a single incident,
if "extraordinarily severe," may evince a sex-based hostile environment under Title VII).
Whether considered individually or on a cumulative basis, however, the incidents cited by
Marquez are insufficiently severe "to overcome [their] lack of pervasiveness" and no reasonable
jury could conclude that they support a hostile environment claim. Mormol, 364 F.2d at 59.
As a preliminary matter, there is no dispute that Castro did not make sexual advances
toward Plaintiff, request sexual favors from Plaintiff, or engage in physical contact with Plaintiff.
There is also no evidence in the record that any of the purportedly harassing conduct was
physically threatening or interfered in any way with Plaintiff's work. Instead, Plaintiff's claim is
premised on three offensive comments by Castro, three to four encounters with Castro emerging
from the locker room less than fully dressed, and a suggestive massage given by Castro to one of
Plaintiff's female colleagues.
Castro's comments concerning Plaintiff's "nice and tight" physical shape, his own "gun
show" muscles, and the "open" state of Plaintiffs' pants during lunch- while no doubt
inappropriate and boorish- are not, as an objective matter, sufficiently severe to be actionable
under Title VIL These comments did not, for example, contain profanity, slurs, insults, or
threats, and did not explicitly reference sexual acts or specific physical features. Indeed, they
are, in this regard, similar to (or objectively less offensive than) other instances oflargely nonphysical conduct deemed insufficient to create a hostile work environment by other courts in this
Circuit. See, e.g., Alfano, 294 F.3d at 370, 380-81 (reversing jury verdict for plaintiff subjected
to a series of pranks, notes, and comments regarding her sex life, including insinuations of sexual

16

activity with carrots and references to inappropriate physical contact with plaintiff's
subordinate); Quinn v. Green Tree Credit Corp., 159 F.3d 759, 768 (2d Cir. 1998) (summary
judgment for defendant where supervisor told plaintiff that she had been "voted the 'sleekest ass'
in the office" and deliberately touched her breasts with papers that he was holding); Robinson v.
Purcell Constr. Corp., 859 F. Supp. 2d 245, 250-52, 255 (N.D.N.Y. 2012) (summary judgment
where plaintiff's co-workers called her a "bitch," asked if she knew the definition "of a cunt,"
and stated that she "must be ragging it today," and plaintiff's supervisor repeatedly told her in
front of her co-workers that she had a "fat ass"); Spina 2003 WL 22434143, at *3 (insufficient
severity where plaintiff's supervisor commented that she "looked good in tight pants," called her
a "bitch" twice, stuck his finger in her face, complimented her hair and eyes, and "constantly
leered at her and followed her") (internal quotation marks omitted); Dawson v. Bumble &
Bumble, 246 F. Supp. 2d 301, 327-29 (S.D.N.Y. 2003), ajf'd 398 F.3d 211 (2d Cir. 2005)
(summary judgment where coworkers told homosexual plaintiff that "what she needed was sex
with a man" and that she and a transsexual colleague "should switch body parts").
The Court also notes that the context of certain of Castro's comments reinforces the
Court's conclusion as to their objective severity. The undisputed evidence demonstrates that at
least one of these comments (that concerning Plaintiff's physical shape) was an off-the-cuff
interjection made specifically in response to Plaintiff's remark about her desire to lose weight.
See Pl. Resp. iii! 22-23. Such context, of course, does not render such a remark any less crude or
out-of-place in the work environment. But it does reinforce that it is properly viewed as the sort
of "offhand" or "teasing" comment which, even if "offensive, unprofessional, or childish," does
not support a viable Title VII claim. Cadet v. Deutsche Bank Sec., 11-cv-7964, 2013 WL

17

3090690, at *9-10 (S.D.N.Y. Jun. 18, 2013) (internal quotation marks and citations omitted); 5
see also Dawson, 246 F. Supp. 2d at 327-29 (in context of work environment and in light of
comments made by plaintiff, defendants' comments were nothing more than "the ordinary
tribulations of the workplace," amounting to "sporadic use of abusive language, gender-related
jokes, and occasional teasing") (internal quotation marks omitted).
To contend that Castro's comments could indeed reasonably be found to have created a
hostile environment, Plaintiff relies in large measure on the Court of Appeals' decision in
Kotcher v. Rose & Sullivan Appliance Ctr., Inc., 957 F.2d 59 (2d Cir. 1992), and this Court's
decision in Cruz v. NY State Dep 't of Corrs. & Cty. Supervision, 13-cv-1335, 2014 WL
2547541 (S.D.N.Y. Jun. 4, 2014). Op. at 6-7. Such reliance is misplaced. Kotcher concerned a
supervisor who "made numerous comments about [one plaintiffs] breasts and other parts of her
body" and on occasion "grabbed her, leaving bruises on her arm"; made comments about another
plaintiffs bodily "equipment" driving her sales; and, "on a regular basis," "pretended to
masturbate and ejaculate" at both plaintiffs' backs to "express his anger" with them. 957 F.2d at
61. Cruz, meanwhile, involved allegations, taken as true, that the plaintiffs supervisor "made
almost-daily comments for over three years, remarking upon his physical appearance, gender,
and sexual attractiveness while smiling seductively, and implying sexual intent." 2014 WL
2547541, at *4 (emphasis added). The Court has no trouble concluding that the combination of
unwanted physical aggression and repeated explicit references to sexual acts and bodily features
in Kotcher, and the sheer volume and frequency of the comments in Cruz, render the harassment
complained of in those matters far afield from that at issue here.

5

Although Cadet involved a claim of race-based hostile environment under Title VII, "[g]enerally, the same
standards apply to both race-based and sex-based hostile environment claims." Richardson v. NY. State Dep 't of
Corr. Servs., 180 F.3d 426, 436 n.2 (2d Cir.1999), abrogated on other grounds by Burlington N & Santa Fe Ry. Co.
v. White, 548 U.S. 53 (2006).

18

Plaintiffs encounters with Castro emerging from the precinct locker room similarly fail
to create an objectively hostile work enviromnent. Plaintiff is able to provide supporting detail
concerning only two such incidents: one in which Castro opened the locker room door with a
towel around his waist and asked Plaintiff, seated at her desk less than twenty feet away, to take
a message from anyone who called while he was in the shower; and another in which Castro
walked out of the locker room in a tank top, flexed his muscles, and "invited" Plaintiff, to the
"gun show." There is no evidence to suggest that Castro made any explicit sexual references,
threats, or insults during these encounters, exposed himself, or attempted to touch Plaintiff in any
way. Indeed, Plaintiff explicitly confirmed at deposition that the first such encounter involved
no "sexual remarks or innuendos," Marquez Dep. at 61, and reported to EEO during a November
2012 intake call that the "gun show" remark referred only to Castro's physical strength and was
"not a sexual comment," See NYPD EEO, Telephone Conversation with Lisa Marquez, dated
November 7, 2012 (Plaintiffs Ex. C) (audio recording) at 10:21-35. Courts in this Circuit have
deemed isolated incidents of plaintiffs encountering colleagues in states of partial undress
insufficiently severe to create a hostile enviromnent. See Adams v. City ofN.Y, 837 F. Supp. 2d
108, 118, 127 (E.D.N.Y. 2011) (summary judgment on standalone hostile enviromnent claim
where plaintiffs superior "opened the door" to his office "naked to the waist" and with "the
zipper of his pants ... down," "insisted that [plaintiff] come into the office," and then "directed
[plaintiff] to lock the door until he got completely dressed"); see also Duguie v. City of

Burlington, 161 F. App'x 177, 177-78 (2d Cir. 2006) (Summary Order) (affirming summary
judgment on Section 1983 hostile enviromnent claims6 despite "several instances" of male
police officers "undress[ing]" or "urinat[ing]" while female plaintiffs were cleaning locker room)

6

"Section 1983 sexual harassment claims that are based on a 'hostile environment' theory ... are governed by
traditional Title VII 'hostile environment' jurisprudence." Hayut, 352 F.3d at 744-45.

19

(internal quotation marks omitted); cf Saile v. NY. State Dep 't ofMotor Vehicles, 5: 13-cv-1394,
2015 WL 6962688, at *14 (N.D.N.Y. Nov. 9, 2015) (plaintiffs "coincidenta[l]" encounter with
male coworkers working shirtless on "two or three" occasions was "hardly unwanted nudity on a
regular basis") (internal quotation marks omitted). Under the circumstances - and
notwithstanding Castro's sophomoric "gun show" comment - the same conclusion applies here.
No reasonable jury could find that the encounters complained of created a hostile work
environment.
Plaintiff also suggests, citing Kaytor v. Elec. Boat Corp., 609 F.3d 537, 547 (2d Cir.
2010), that Castro's conduct was physically threatening, causing it to '"cross the line"' from
"'offensive or boorish conduct"' into '"actionable sexual harassment."' Opp. at 8 (quoting

Kaytor, 609 F.3d at 54 7). Plaintiff may be correct that actions which are objectively physically
threatening can indeed have such an effect, but the conduct complained of here objectively falls
far short of the sort at issue in Kaytor. There, a supervisor, in addition to making a variety of
sexually suggestive and offensive comments, told the plaintiff on "at least six occasions" that he
"wanted to 'choke' her" (including one instance in which he mused aloud about corning to her
home to do so); "often wished her dead, saying 'I'd like to see you in your coffin'"; and
explicitly threatened to kill her for reporting his conduct. 609 F.3d at 539-541. As an objective
matter, Castro's appearances in a towel or tank top are insufficiently "physically threatening" to
push otherwise non-actionable conduct "[a]cross the line." 609 F.3d at 547.
Finally, the massage that Plaintiff witnessed Castro administering to Gadsden does not
support a finding of objective severity. While it is true, as Plaintiff notes, that "evidence of
harassment directed at other co-workers can be relevant to an employee's own claim of hostile
work enviromnent discrimination," Leibovitz, 252 F.3d at 190, the record before the Court - even

20

when viewed in the light most favorable to Plaintiff - does not reflect harassment of Gadsden.
Plaintiff testified that, in her view, Gadsden did not appear to be uncomfortable receiving the
massage and did not object to Castro's conduct. Marquez Dep. at 67-68. Gadsden herself
ultimately infonned EEO - after initially equivocating - that she did not perceive any back or
shoulder rub that she received from Castro to be "sexual in nature," that such contact did not
make her feel "any way" in particular, that she was "very comfortable" working with Castro, and
"ha[d] no issues with him." See Investigating Officer's Report, EEO, dated April 27, 2013, at
DEF 0335 (Dkt. No. 65-14). As a recent decision of this Court accurately concluded, "Plaintiffs
aversion to other people receiving massages" - assuming those people appeared '"okay' with
getting [the] massages" - "does not constitute a sexually hostile environment." Toyama v.
Hasaki Rest., Inc., No. 13-cv-4892, 2014 WL 7234602, at *3 (S.D.N.Y. Dec. 18, 2014); see also
Gale v. Primedia, OO-cv-5700, 2001WL1537692, at *3-4 (S.D.N.Y. Dec. 3, 2001) (plaintiff
could not have sustained hostile work environment claim based on observations of consensual
kissing and caressing between her supervisor and co-worker).
The Court finds that based on Plaintiffs versions of the incidents described above,
whether considered individually or in the aggregate, no reasonable factfinder could conclude that
Plaintiffs workplace was "permeated with discriminatory intimidation, ridicule, and insult ...
sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive
working environment." Howley, 217 F.3d at 153. Accordingly, there is no triable issue of
material fact regarding Plaintiffs Title VII hostile environment claim, and summary judgment
thereon is warranted. 7

7

Defendants suggest that Plaintiff asserts a claim for gender discrimination under Title VII independent of her
hostile environment sexual harassment claim. See, e.g., Br. at 12-15; Reply Br. at 5 n.2. It is not clear to the Court
that any such claim (for example, a discrete disparate treatment claim) is in fact asserted. See Comp!. '\l'\l 67-69
(setting forth a single cause of action for "discriminat[ion] against Plaintiff because of her gender (sexual

21

C.

Title VII Retaliation Against the City

Plaintiff next brings a claim for retaliation under Title VII. Plaintiff asserts that, in
response to her internal complaints of sexual harassment and her subsequent testimony before
EEO, Defendants - largely through Castro - antagonized Plaintiff by, among other things:
interfering in her robbery investigation; changing her shift schedule; making derogatory
comments about Plaintiffs workplace contributions while on restricted duty status; berating and
threatening to suspend Plaintiff for failing to complete an assignment; preventing Plaintiff from
attending an office holiday party; and ordering Plaintiff to remove her hanging plants from the
precinct. Op. at 13-18.
Claims for retaliation under Title VII are analyzed under the three-step burden-shifting
framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). See, e.g., Philip v. Gtech Corp., 14-cv-9261, 2016 WL 3959729, at *10 (S.D.N.Y.
Jul. 20, 2016). At the first step of the McDonnell Douglas framework, the plaintiff must
establish a prima facie case that her employer retaliated against her, "demonstrating that (i) [s]he
engaged in protected activity by opposing a practice made unlawful by Title VII; (ii) h[ er]
employer was aware of that activity; (iii) [s]he suffered a materially adverse employment action;
and (iv) there was a causal connection between the protected activity and the adverse
employment action." Lee v. Starwood Hotels & Resorts Worldwide, Inc., 14-cv-5278, 2016 WL
3542454, at *8 (S.D.N.Y. Jun. 22, 2016) (internal quotation marks omitted) (citing Giscombe v.

NY.C. Dep't ofEduc., 39 F. Supp. 3d 396, 401(S.D.N.Y.2014)).

harassment)") (emphasis in original). To the extent, however, that the Complaint does assert an additional Title VII
gender discrimination claim, Plaintiff has failed to refute or acknowledge that portion of Defendant's summary
judgment papers contending that such claim should be dismissed, and the Court therefore deems that claim
abandoned. See Williams v. City ofNY., 04-cv-1993, 2005 WL 839103, at *11 (S.D.N.Y. Apr. 12, 2005) (Title VII
claim could be deemed abandoned); Pesce, 159 F. Supp. 2d at 459 (claims against NYPD were abandoned); Arias v.
NASDAQIAMEX Market Grp., 00-cv-9827, 2003 WL 354978, at *13 (S.D.N.Y. Feb. 18, 2003) ("In his opposition
papers, [Plaintiff] neither refutes nor even mentions [Defendant's] argument that [Plaintiff] has failed to raise a
genuine issue of material fact on either his claim of disability discrimination or his claim of unlawful disclosure.
Therefore, he has abandoned these claims, and they are dismissed.").

22

A purportedly retaliatory action is "materially adverse" if "it well might have dissuaded a
reasonable worker from making or supporting a charge of discrimination." Burlington, 548 U.S.
at 68 (internal quotation marks omitted). "Actions that are 'trivial harms' - i.e., 'those petty
slights or minor annoyances that often take place at work and that all employees experience' are not materially adverse." Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556, 568
(2d Cir. 2011) (quoting Burlington, 548 U.S. at 68). "Material adversity is to be determined
objectively, based on the reactions of a reasonable employee." Id. Nevertheless, "context
matters," since "the real social impact of workplace behavior often depends on a constellation of
surrounding circumstances, expectations, and relationships which are not fully captured by a
simple recitation of the words used or the physical acts performed." Hicks v. Baines, 593 F.3d
159, 165 (2d Cir. 2010) (internal quotation marks omitted) (citing Burlington, 548 U.S. at 69). 8
"[T]he alleged acts of retaliation need to be considered both separately and in the aggregate, as
even minor acts ofretaliation can be sufficiently 'substantial in gross' as to be actionable." Id.
(citing Zelnick v. Fashion Inst. of Tech., 464 F.3d 217, 227 (2d Cir. 2006)).
Proof of a causal connection between the protected activity and the adverse
employment action "can be shown either: (1) indirectly, by showing that the protected activity
was followed closely by discriminatory treatment, or through other circumstantial evidence such
as disparate treatment of fellow employees who engaged in similar conduct; or (2) directly,
through evidence of retaliatory animus directed against the plaintiff by the defendant." Gordon

v. N Y.C. Bd. ofEduc., 232 F.3d 111, 117 (2d Cir. 2000).
In general, the burden of proof that a plaintiff must satisfy to establish a prima facie case
ofretaliation is "de minimis." Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir.
2005). "In determining whether this initial burden is satisfied ... the court's role in evaluating a
summary judgment request is to determine only whether proffered admissible evidence would be
sufficient to permit a rational finder of fact to infer a retaliatory motive." Id.
8

In Hicks, the Court of Appeals expressly "analyzed" retaliation claims under Sections 1981and1983 "pursuant to
Title VII principles." 593 F.3d at 164.

23

"If the plaintiff sustains [her] initial burden, 'a presumption of retaliation arises."' Hicks,

593 F.3d at 164 (quoting Jute, 420 F.3d at 173). The defendant may rebut the presumption by
"articulat[ing] a legitimate, non-retaliatory reason for the adverse employment action." Id.
(internal quotation marks omitted). If the employer does articulate such a reason, then "the
presumption ofretaliation dissipates," Jute, 420 F.3d at 173, and "the plaintiff must prove 'that
the desire to retaliate was the but-for cause of the challenged employment action."' Ya-Chen

Chen v. City Univ. ofNY., 805 F.3d 59, 70 (2d Cir. 2015) (quoting Univ. ofTex. Sw. Med. Ctr. v.
Nassar, _U.S._, 133 S.Ct. 2517, 2528 (2013)). "A plaintiff may prove that retaliation was a
but-for cause of an adverse employment action by demonstrating weaknesses, implausibilities,
inconsistencies, or contradictions in the employer's proffered legitimate, nonretaliatory reasons
for its action" so long as "[f]rom such discrepancies, a reasonable juror could conclude that the
explanations were a pretext for a prohibited reason." Zann Kwan v. Andalex Grp. LLC, 737 F.3d
834, 846 (2d Cir. 2013). On the other hand, temporal proximity between the protected activity
and the adverse employment action, while potentially sufficient to indirectly establish a causal
connection at the prima facie stage, is "alone ... insufficient to defeat summary judgment at the
pretext stage." Id. at 845, 847.
1.

Plaintiffs Fails to Establish a Prima Facie Case

Defendants appear to concede that Plaintiffs complaints to the union and EEO constitute
protected activities and that Defendants were aware of such activities. Defendants argue,
however, that Plaintiff fails to establish a prima facie case of retaliation because she does not
identify any employment action that could be deemed "materially adverse" under the applicable
standard and, even if she did, Plaintiff is unable to show the requisite causal connection between
her protected activities and that materially adverse action. Br. at 17-19; Reply Br. at 5-9. The
Court agrees that there this no genuine issue that Plaintiff has failed to carry even her de minimis
initial burden of establishing a prima facie case. Accordingly, summary judgment on Plaintiffs
Title VII retaliation claim is warranted.

24

a.

The Evidence Does Not Reflect Materially Adverse
Employment Action

Plaintiff does not appear to argue that any of the cited retaliatory incidents constitutes a
materially adverse employment action in and of itself. Instead, she contends that, together, they
created an actionable retaliatory hostile work environment. Op. at 15.
In general, a retaliatory hostile work environment may indeed constitute materially
adverse employment action. See, e.g., 180 F .3d at 446 ("We adopt the view that unchecked
retaliatory co-worker harassment, if sufficiently severe, may constitute adverse employment
action so as to satisfy the second prong of the retaliation prima facie case."). To establish that
'"a retaliatory hostile work environment ... might dissuade a reasonable worker from reporting
activity prohibited by Title VII, a plaintiff must satisfy the same standard that governs
[standalone] hostile workplace claims by showing that the incidents of harassment following
complaints were sufficiently continuous and concerted to have altered the conditions of [her]
employment."' Villar v. City ofNY, 135 F. Supp. 3d 105, 137 (S.D.N.Y. 2015) (quoting Rasco

v. BT Radianz, 05-cv-7147, 2009 WL 690986, at *15 (S.D.N.Y. Mar. 17, 2009)); Smith v.
Westchester Cty. Dep't ofCorrs., 12-cv-3941, 2014 WL 4384104, at *8 (S.D.N.Y. Sept. 3, 2014)
(same); see also Gregory v. Daly, 243 F.3d 687, 701 (2d Cir. 2001) ("[W]e apply the same
standards in determining whether retaliatory harassment constitutes an adverse employment
action as we do in assessing whether harassment imposed because ofsex works an actionable
alteration in the terms or conditions of employment.") (emphasis in original).
Plaintiffs retaliatory hostile environment claim is premised primarily on incidents in
which: (i) Castro yelled at a Plaintiff and a robbery victim in March 2012 while Plaintiff was
trying to convince the victim to join a search for the perpetrator, telling the victim that he or she
should not be scared to join the search and accusing Plaintiff of trying to "milk" the
investigation; (ii) Castro told Plaintiff in May 2012 following her knee surgery that she was
"useless" and "no good on the job"; (iii) Castro and Holness changed Plaintiffs schedule from
an alternating shift arrangement to an 11 :30 AM- 8:00 PM shift in May 2012 and then again to

25

a 4:30 PM - 1:00 AM shift in October 2012; (iv) Castro berated Plaintiff on November 6, 2012
for failing to complete an administrative assignment, demanding to know why the work was not
finished, telling Plaintiff among other things to "sit the hell down," "taking his fists out,"
threatening to suspend Plaintiff, and following Plaintiff to the locker room to "bang" or "kick"
on the door while she attempted to call her union representative; (v) Castro prohibited Plaintiff in
December 2012 from changing her work schedule to attend an office holiday party, while
allowing several male colleagues to change their work schedules in order to attend; and
(vi) Castro ordered Plaintiff, also in December 2012, to remove her hanging plants from the
precinct. Opp. at 15-18. Assuming for purposes of this motion that all these events occurred as
described by Plaintiff, it is evident to the Court that no rational jury could find that this conduct
meets the "demanding" standard necessary to show a hostile work environment. Faragher, 524
U.S. at 788.
The incidents complained of - six to seven in all - occurred over the course of more than
nine months, rendering them "episodic" in nature and insufficiently "continuous and concerted"
to be deemed pervasive. Alfano, 294 F.3d at 374 (internal quotation marks omitted); Ramos v.

Marriot Int'!, Inc., 134 F. Supp. 2d 328, 348-49 (S.D.N.Y. 2001) (six gender-biased comments
by supervisor and co-workers over six months insufficiently pervasive). The incidents, both
individually and collectively, also fall well short of the severity threshold established in this
Circuit. Indeed, they amount to little more than a series of the very sort ofregrettably mundane
workplace travails - temper flares, personality clashes, public chastisement, inconvenient
schedules - that, while no doubt unpleasant, do not support Title VII claims. See, e.g., Hahn v.

Bank ofAmerica Inc., 12-cv-4151, 2014 WL 1285421, at *23-24 (S.D.N.Y. Mar. 23, 2014)
(approximately seven incidents in which supervisor "yelled or screamed" at plaintiff or
"otherwise embarrassed her" in front of her co-workers and customers across a three-month
period did not constitute retaliatory hostile environment) (collecting cases); Davis-Bell v.

Columbia Univ., 851 F. Supp. 2d 650, 672-79 (S.D.N.Y. 2012) (no hostile environment when
plaintiff was "verbally abused," "cursed at" and "yelled at," physically blocked into a private
26

office, "falsely" accused of workplace misconduct and crimes, had "paper thrown at her," and
had "repeated requests for ... transfer and reassignment [made] by her supervisor"); see also

Bowen-Hooks v. City of NY., 13 F. Supp. 3d 179, 235-36 (E.D.N.Y. 2014) (male supervisor
following female lieutenant to parking garage in "menacing manner" and threatening to charge
her with insubordination for refusing to remove window covering from her office insufficiently
severe to constitute hostile environment); Trachtenberg v. Dep 't ofEduc. of City ofNY., 937 F.
Supp. 2d 460, 472-73 (S.D.N.Y. 2013) ("excessive scrutiny" from principal, "negative
performance evaluations and ... letters that contained scurrilous charges," "frequent[]" staring in
"an effort to intimidate" plaintiff, required move to "poorly ventilated windowless office," and
"refus[al] [of] training opportunities" did not constitute hostile work environment).
Nor could a reasonable jury conclude that the incidents complained of by Plaintiff satisfy
the general retaliation standard of potentially "dissuad[ing] a reasonable worker from making or
supporting a charge of discrimination." Burlington, 548 U.S. at 54 (internal quotation marks
omitted). To the contrary, they are precisely the types of of "trivial harms," "petty slights," or
"minor annoyances" that, as a matter oflaw, do not qualify as materially adverse. Tepperwien,
663 F.3d at 568 (internal quotation marks omitted); see also Burlington, 548 U.S. at 68
(recognizing that personality conflicts at work that generate antipathy, snubbing by supervisors
and co-workers, the sporadic use of abusive language, and simple lack of good manners are
generally not actionable under Title VII' s antiretaliation provision); Martinez v. NY. C. Dep 't of

Educ., 04-cv-2728, 2008 WL 2220638, at *12 (S.D.N.Y. May 27, 2008) (incidents of supervisor
publicly yelling at plaintiff and calling him "shit" constituted "petty slights and personality
conflicts" that could not support retaliation claim); Petyan v. NY. C. Law Dep 't, 14-cv-1434,
2015 WL 4104841, at *4 (S.D.N.Y. Jul. 2, 2015) ("Schedule changes and close monitoring do
not constitute adverse actions in the retaliation context.") (citing Tepperwien, 663 F.3d at 568);

Simmons-Grant v. Quinn Emanuel Urquhart & Sullivan, LLP, 915 F. Supp. 2d 498, 507-08
(S.D.N.Y. 2013) (confrontation with supervisor regarding scheduling that plaintiff found
"uncomfortable" and caused to her to fear for her "physical safety" not a materially adverse
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employment action); Mahoney v. Donovan, 824 F. Supp. 2d 49, 61 (D.D.C. 2011) ("no
reasonably jury could find that not being invited to an office holiday party ... would dissuade a
reasonable employee from supporting of a charge of discrimination").
Finally, Plaintiff appears to suggest in passing that EEO's disposition of her internal
complaint itself constitutes, or at least contributes to, materially adverse employment action
sufficient to support a retaliation claim. Op. at 18. This argument, which is unsupported by any
authority, proves too much. Plaintiff may dispute EEO's findings that her allegations could not
be corroborated and, in any event, did not rise to the level of employment discrimination. But if
such findings were to qualify as materially adverse employment action, that would mean, in
essence, that it would be "reasonable" for any employee to be "dissuaded" from making or
supporting a discrimination charge purely by the prospect of an unfavorable resolution of that
charge. Burlington, 548 U.S. at 68 (internal quotation marks omitted). That conclusion would
be inconsistent with Title VII's "entire scheme for the efficient and timely adjudication of
employment disputes," "integral" to which is "the principle that a complainant must fully
exhaust [her] administrative remedies prior to filing a court action." McGuire v. US. Postal

Serv., 749 F. Supp. 1275 1287-88 (S.D.N.Y. 1990) (emphasis in original) (citing Brown v. Gen.
Servs. Admin., 425 U.S. 820 (1976)). Accordingly, the Court sees no basis to adopt it.
For the foregoing reasons, the Court concludes that no reasonable jury could conclude
that Plaintiff has made aprimafacie showing that she suffered a materially adverse employment
action in purported retaliation for her protected activities.

b.

Plaintiff Does Not Make a Prima Facie Showing of Causal
Connection

Even assuming arguendo that certain of the comparatively more objectively "serious"
incidents of which Plaintiff complains - the November 6 confrontation with Castro, for
example - could potentially be found to constitute materially adverse employment action,
Plaintiff has failed as a matter of law to make a sufficient prima facie showing of causation to
survive summary judgment. Plaintiff attempts to establish the requisite causal link by relying
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entirely on the purported temporal proximity between her February 2012 internal complaints and
the alleged retaliatory conduct. Op. at 19-20. It is true both that a plaintiff may demonstrate
causation at the primafacie stage "indirectly through temporal proximity," Zann Kwan, 737 F.3d
at 845, and that the Court of Appeals "has not drawn a bright line defining," with specificity,
"the outer limits beyond which a temporal relationship is too attenuated to establish causation,"

Gorzynski, 596 F.3d at 110. But the Supreme Court has recognized that if the only proffered
evidence of causation is temporal proximity, that evidence uniformly passes muster only where
"the temporal proximity is 'very close."' Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273-74
(2001) (per curiam) (quoting 0 'Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1253 (10th Cir.
2001)). With the exception of the March 2012 incident on which Castro yelled at Plaintiff and a
robbery victim - which could not itself qualify as a materially adverse employment action - the
conduct of which Plaintiff complains occurred at least three months and, in several important
cases, more than eight months after Plaintiff first submitted complaints to EEO and the union in
February 2012. Especially without additional circumstantial evidence of a causal link, Plaintiff
cannot rely on such an attenuated temporal relationship to establish a prima facie case of
causation. See, e.g., Peguero-Miles v. City Univ. ofNY, 13-cv-1636, 2015 WL 4092336, at *11
(S.D.N.Y. Jul. 6, 2015) (seven-month lapse between protected activity and adverse action made
inference of causation "exceedingly weak"). For this additional reason, summary judgment on
Plaintiffs Title VII retaliation claim is appropriate.

D.

NYCHRL Claims Against the City and Castro

Having disposed of Plaintiffs Title VII claims, the Court declines to exercise
supplemental jurisdiction over Plaintiffs remaining claims under the NYCHRL. See In re

Merrill Lynch Ltd. P'ships Litig., 154 F.3d 56, 61 (2d Cir. 1998) (per curiam) (noting that "when
the federal claims are dismissed the 'state claims should be dismissed as well"') (citing United

Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966); Pitchell v. Callan, 13 F.3d 545, 549 (2d Cir.
1994)); see also Belton v. City ofNY, 12-cv-6346, 2014 WL 4798919, at *9 (S.D.N.Y. Sept. 26,

29

2014) (declining supplemental jurisdiction over NYCHRL after granting summary judgment on
Title VII claims).

IV.

Conclusion

For the reasons articulated above, Defendants' motion for summary judgment is
GRANTED with respect to Plaintiffs Title VII claims, and the Court declines to exercise
supplemental jurisdiction over Plaintiffs remaining claims under the NYCHRL.
The Clerk of Court is respectfully directed to terminate Dkt. No. 62 and to close this case.

SO ORDERED.
Dated: September \~ , 2016
New York, New York

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