Yeger v. The Institute Of Culinary Education, Inc.

Filing 72

MEMORANDUM OPINION AND ORDER: re: 55 MOTION to Strike Document No. 53 , Exhibits 1 and 2 thereto filed by Debby Yeger, 27 FIRST MOTION for Summary Judgment filed by The Institute Of Culinary Education, Inc. Plaintiff 's motion to strike is granted. Defendan's motion for summary judgment is denied as to the aspect of Plaintiff's FMLA retaliation claim that arises from adverse employment actions that occurred after October 14, 2012, and is granted in all other respects. The final pre-trial conference is scheduled for March 17, 2017 at 3:00 p.m. The parties must promptly meet to discuss settlement, and must confer and make pre-conference submissions in accordance with the Pre-Trial Scheduling Ord er (docket entry no. 17). This Memorandum Opinion and Order resolves docket entry numbers 27 and 55. SO ORDERED., ( Final Pretrial Conference set for 3/17/2017 at 03:00 PM before Judge Laura Taylor Swain.) (Signed by Judge Laura Taylor Swain on 1/25/2017) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------x
DEBBY YEGER,
Plaintiff,
-v-

No. 14CV8202-LTS

THE INSTITUTE OF CULINARY
EDUCATION, INC.,
Defendant.
-------------------------------------------------------x
MEMORANDUM OPINION AND ORDER
In this action brought against the Institute of Culinary Education, Inc. (“ICE” or
“Defendant”), Plaintiff Debby Yeger (“Plaintiff or “Yeger”) asserts thirteen causes of action for
employment discrimination and retaliation under the Age Discrimination in Employment Act
(“ADEA”), Title VII of the Civil Rights Act of 1964 (“Title VII”), the Family and Medical
Leave Act (“FMLA”), the New York State Human Rights Law (“NYSHRL”), and the New York
City Human Rights Law (“NYCHRL”). Plaintiff alleges that she was subjected to
discriminatory adverse employment actions (including salary disparities, diminution of
responsibilities and, ultimately, termination) on account of her age, religious practices and
gender, and that some of the acts were also attributable to retaliation for complaints of
discrimination or for taking intermittent leave pursuant to the FMLA. Defendant has moved for
summary judgment on all claims. Plaintiff has also moved to strike two exhibits filed in
connection with Defendant’s reply in the summary judgment briefing.
The Court has subject matter jurisdiction of this action under 28 U.S.C. §§ 1331

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and 1367.
The Court has considered thoroughly the parties’ submissions. For the following
reasons, Plaintiff’s motion to strike is granted and Defendant’s motion for summary judgment is
granted in part and denied in part.

BACKGROUND
Except as otherwise noted, the following material facts are undisputed.1
ICE is a culinary center for education in New York City, offering career training
programs in the culinary arts, baking, and culinary management. (Def. 56.1 ¶¶ 1-2.) Plaintiff
was born in 1952, and was 55 years old when she was hired; she is currently about 64 years old.
She is also Jewish and observes the Sabbath. (See id. ¶¶ 4, 6.) Plaintiff worked for Defendant
from February 25, 2008, until her termination on October 15, 2013. (Id. ¶¶ 3, 303.)
Defendant’s Chief Marketing Officer, Brian Aronowitz, who is Jewish but not
Sabbath observant, initially hired Plaintiff to work as a Financial Planning Administrator in
ICE’s Office of Financial Aid (the “Office”). (Id. ¶¶ 3, 313.) Plaintiff was paid an annual salary
of $55,000 at the commencement of her employment. (Id. ¶ 5.) As a Financial Planning
Administrator, Plaintiff’s primary job responsibilities involved meeting with and counseling
current and prospective students and their parents regarding private and institutional student
loans. (Id. ¶ 16.) To accommodate her religious practices, Defendant agreed to permit Plaintiff
to leave work at 1:30 p.m. every Friday and to excuse her from working on Saturdays. (Id. ¶ 7.)

1

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The facts presented or recited as undisputed are drawn from the parties’ statements
pursuant to S.D.N.Y. Local Civil Rule 56.1, or from evidence as to which there is
no non-conclusory factual proffer. Citations to Defendant’s Local Civil Rule 56.1
Statement and Plaintiff’s response (“Def. 56.1” or “Pl. Resp. 56.1”) incorporate by
reference the parties’ citations to the underlying evidentiary submissions.
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Although the Sabbath does not start until much later than 1:30 p.m. during the Spring and
Summer months, Defendant never forced Plaintiff to stay at work later than 1:30 p.m. on
Fridays. (Id. ¶ 8.) Defendants never forced Plaintiff to work on Saturdays. (Id.)
Around September 2009, after Plaintiff helped Defendant obtain approval for
federal student financial aid under Title IV of the Higher Education Act, Aronowitz promoted
Plaintiff to the position of Director of Financial Aid. (Id. ¶ 18.) After her promotion, Plaintiff’s
salary increased to $65,000. (Id. ¶ 20.) In her capacity as Director of Financial Aid, Plaintiff
was responsible for, inter alia, supervising staff who worked in the Office of Financial Aid,
ensuring adequate staff coverage in the Office, approving and implementing financial aid
policies and procedures, ensuring ICE’s compliance with Title IV, and meeting with students.
(Pl. Resp. 56.1 ¶ 19.)

Work-Related Injury; Related Absences; 2009 Performance Review
On October 2, 2009, Plaintiff suffered an injury on Defendant’s premises. (Def.
56.1 ¶ 42.) Plaintiff took two leaves of absence to recover from surgical procedures related to
the injury: (1) a leave of absence from July 3, 2010, to August 24, 2010, to recuperate from a
surgical procedure that was performed on her left shoulder; and (2) a leave of absence from July
31, 2012, to August 27, 2012, to recuperate from a surgical procedure that was performed on her
left elbow. (Id. ¶ 45.) Around March 2010, Plaintiff began receiving physical therapy two to
three times per week for rehabilitation from the injury. (Id. ¶¶ 47-48.)
On or about August 30, 2010, Aronowitz provided Plaintiff with a written Annual
Performance Review for 2009. (Id. ¶ 32.) While the review included predominately positive
commentary concerning Plaintiff’s performance in connection with obtaining Title IV funding

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for ICE, it also identified areas in need of improvement, including observations that Plaintiff
needed to better understand and engage technology to manage the productivity of staff and more
effectively communicate with co-workers. (See Halter Decl. Ex. 16.) The evaluation also stated
that Plaintiff’s “interpersonal skills are good, as is communication with her Manager.” (Id.)
Aronowitz testified that, beginning in late 2009 and early 2010, he noticed certain performance
deficiencies, including time lags in processing student applications and Plaintiff’s “aggressive”
demeanor in communications with co-workers, which increased over time. (Def. 56.1 ¶¶ 28-31.)
As of January 5, 2011, Plaintiff was leaving work twice a week to attend physical
therapy sessions and worked from home on Fridays. (Def. 56.1 ¶ 49.) It is undisputed that
Aronowitz accommodated Plaintiff’s need to attend physical therapy sessions and medical
appointments during working hours. (Id. ¶ 57.) In or about 2011, Aronowitz discerned
problems that were beginning to arise due to, inter alia, the lack of time Plaintiff spent in the
office interacting with students and co-workers and her unavailability to assist co-workers with
counseling students when she was in the office. (Id. ¶¶ 58. 60.) Aronowitz also has
acknowledged, however, that Plaintiff worked off hours to complete her work and “gets her job
done.” (Halter Decl. Ex. 38; Baken Ex. 17; see also Pl. Resp. 56.1 ¶¶ 58, 60, 62.) Although
Defendant has pointed to evidence suggesting that Plaintiff did not notify co-workers or
supervisors of changes to her schedule, Plaintiff has produced a handful of emails in which she
provided such notice to Human Resources (“HR”) and claims that she could not provide notice
in emergencies. (See Def. 56.1 ¶¶ 63-65; Pl. Resp. 56.1 ¶ 64.)

Job Restructuring; 2011 Performance Evaluation
Around October 2011, Aronowitz decided to restructure the Office. (Def. 56.1 ¶

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71.) Aronowitz testified that he made the decision because, inter alia, he wanted the Office to be
more customer-service oriented, the Office was not processing students quickly enough and
ICE’s financial aid needs eclipsed Plaintiff’s abilities, which were more aligned with a
compliance function than with sales and marketing. (Id. ¶¶ 72-73; Halter Decl. Ex. 21.)
Aronowitz also testified that the decision to bring in someone else stemmed from Plaintiff’s
irregular schedule. (See Aronowitz Dep. 241). Although Plaintiff disputes that there was any
deficiency in her performance, she principally points to evidence demonstrating her positive
capabilities within the compliance context. (See, e.g., Pl. Resp. 56.1 ¶¶ 73, 74, 77 (citing
selected positive reviews of Plaintiff’s work in compliance function).)
As part of the restructuring, Aronowitz created a new position called the Director
of Compliance and Reporting, to which Plaintiff was re-designated. (See Pl. Resp. 56.1 ¶ 79.)
The Director of Financial Aid position was concurrently redefined to focus more on overseeing
the “front end” sales and administrative aspects of the financial aid process, including customer
service. (Def. 56.1 ¶ 80.) Aronowitz planned to have a new Director of Financial Aid perform
“front end” student services and have Plaintiff primarily handle “back end” student services but
still assist with “front end” overflow. (Def. 56.1 ¶¶ 83-85.) Aronowitz testified that he “split up
the duties” between Vince Tunstall, who was later hired for the new Director of Financial Aid
position, and Plaintiff. (Aronowitz Dep. 151.) It is undisputed that Aronowitz wanted to obtain
Plaintiff’s cooperation and involved her in the restructuring effort. (Def. 56.1 ¶¶ 89-90.)
As of December 31, 2011, Plaintiff was earning a salary of $68,900. (Id. ¶ 111.)
On January 3, 2012, Aronowitz sent an email to Petersen with a “correction” to the 2012 payroll
plan: “[i]ncrease Deb $5K with ‘promotion’ to D of Compliance.” (Halter Decl. Ex. 25.)
Aronowitz testified that he may have asked for the five thousand dollar raise but knew Plaintiff

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may have received a smaller amount due to management team considerations. (See Aronowitz
Dep. 170-71.) As of December 31, 2012, Plaintiff’s salary was $ 70,622.50. (Halter Decl. Ex.
64.)
Before meeting any potential candidates for the redefined Director of Financial
Aid position, Aronowitz knew that the person he hired for the position would receive a higher
salary than Plaintiff had been paid while she was in the prior Director of Financial Aid position.
(Def. 56.1 ¶ 108.) Defendant advertised the redefined position at an annual salary of $80,000 to
$85,000. (Id. ¶ 110.) On or about April 30, 2012, Aronowitz hired Vincent Tunstall to fill the
redefined Director of Financial Aid position. (Def. 56.1 ¶ 100.) Tunstall was 46 years old when
he was hired. (Id. ¶ 101.) Aronowitz agreed to pay Tunstall a starting salary of $100,000. (Id. ¶
113.) Tunstall had significant experience working as Director of Financial Aid and Director of
Compliance at three educational institutions from 1997 to 2012, supervising a staff of financial
aid employees, including a staff ranging from about seven to twenty, over whom he had hiring
and firing authority. (Id. ¶¶ 102-107.) When Tunstall commenced his employment on or about
May 7, 2012, Plaintiff was officially reassigned as Defendant’s Director of Compliance and
Reporting. (Id. ¶ 115.) Aronowitz instructed Plaintiff and Tunstall to work together as equal
partners. (Id. ¶ 116; see also Kennedy Dep. 58 (Q: The person you were hiring was supposed to
be Ms. Yeger’s peer, correct? A: Correct.). Plaintiff disputes that equal partnership occurred in
practice, contending that Tunstall was her supervisor as a practical matter. (Pl. Resp. 56.1 ¶¶
116, 117.) Tunstall and Plaintiff worked together to finalize the division of responsibilities
between them. (Def. 56.1 ¶ 119; see Baken Decl. Ex. 16; Halter Decl. Ex. 29.) Plaintiff’s
responsibilities continued to include assisting co-workers with counseling students. (See Pl.
Resp. 56.1 ¶ 122.)

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On or about March 13, 2012, Aronowitz issued a 2011 performance evaluation
for Plaintiff. (Def. 56.1 ¶ 92.) The evaluation again identified Plaintiff’s communication skills
as in need of improvement, though it acknowledged that Plaintiff was working on the issue, and
reiterated that Plaintiff had played an integral part in ICE obtaining approval for Title IV in
2009. (Baken Ex. 17.) The evaluation noted that, given that ICE had hit its stride concerning
compliance, efforts in 2012 should look to increasing the number of student applicants and
efficiency in processing applications. (Id.) The evaluation indicated that Plaintiff was “too
compliance laden at times” and also stated that, “[d]espite Debby’s unusual schedule (that
Management hopes will return to normal soon), she was frequently observed by her Manager
working late, coming in on days off, checking in on vacation and FedEx’ing files home to
review.” (Baken Decl. Ex. 17.)
Around September 2012, Defendant changed its reporting structure and assigned
both Plaintiff and Tunstall to report to Chief Financial Officer Matthew Petersen. (Def. 56.1 ¶
125.) Petersen had been hired in 2011. (Petersen Dep. 22.) He testified that he earned his
Bachelor’s degree in 1998, which would make him approximately twenty years younger than
Plaintiff. (See id. 9.)

Performance and Scheduling Issues in 2012
On May 11, 2012, Aronowitz sent an email to Kennedy, which stated “[w]hen
[Plaintiff] settles down . . . need you to broach the subject with her on her schedule returning to
normal. She puts in a lot of hours and I can say she gets her job done, but I want them to start
overlapping with office staff, notably Vince. Then there are Fridays: she has standing approval
to leave at 2PM for religious observances, with the understanding that she will make up the

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hours earlier in the week. She has hardly been in on Friday’s [sic] at all (that said, she works
from home) citing physical therapy from her injury sustained here as the reason. No idea what I
can/cannot do here. . . but she is working. Goal is to just align her interests and those of Vince
more. Also, she will need to start seeing students soon . . . .” (Halter Decl. Ex. 38.)
According to Aronowitz, around October 2012, he experienced “face time” issues
with Plaintiff. (Aronowitz Dep. 241.) Aronowitz testified that “[t]he face time issues with
Debby were issues after she had gotten hurt and the height of our – you know, her extent of
having to go for these different reports to – for therapy or for these hearings or for whatever it
was. So I was experiencing face time issues with Debby before she even went to Matt
[Petersen]. That was one of the reasons that we implemented Vince [Tunstall].” (Id.) Around
the same time in October 2012, Tunstall wrote to Petersen that, “Debby is a wild card in the
office with her days off and arrangements made prior to my arrival. She does have some value
for Ice rt now but I don’t think she is in the long term (2yrs and out) picture at ICE.” (Pl. Resp.
56.1 ¶ 8; Halter Decl. Ex. 45.) Tunstall testified that the “arrangements” to which he referred
were Plaintiff not working weekends, “having Christmas week off. Was able to take half a day
on Friday, which I wasn’t aware of when I was hired.” (Tunstall Dep. 109.) Tunstall testified
that he did not believe ICE should fire Plaintiff but that she would leave on her own. (Id. 110.)
Later that same day, in response to inquiries from Rick Smilow, ICE’s President and CEO,
Petersen wrote to Smilow, Kennedy, and Aronowitz that “Vin [Tunstall] had been shopping for a
back up to replace Debby as we are both less than confident that she will work out within the
next 3 - 6 months.” (Halter Decl. Ex. 46.)
Also in October 2012, Plaintiff met with Petersen to request a salary increase.
(Def. 56.1 ¶ 155.) Plaintiff presented information related to salaries for “Compliance Directors”

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and, after receiving the information, Petersen agreed to perform his own research and to meet
with Plaintiff again to discuss the matter further. (Id. ¶¶ 178-80.)
At some point after Petersen became Plaintiff’s supervisor in September 2012, he
asked Plaintiff to explain what she did during her work day. (Def. 56.1 ¶ 131.) Petersen
testified that he made this request because Plaintiff had told him that she did not see students and
he had never heard of a proprietary school having a separate full time Director of Compliance.
(Id. ¶¶ 129-313.) Plaintiff denies that she said she did not see students, but asserts that she likely
told Petersen told those duties were in conflict with her compliance duties. (Pl. Resp. 56.1 ¶
130.) Between October and December 2012, Defendant and Plaintiff engaged in numerous
discussions concerning her division of time between meeting with students and compliance
duties, including addressing three complaints received from colleagues that Plaintiff refused to
meet with students. (See Def. 56.1 ¶¶ 135-157, 162-76.) Among these communications was a
December 14, 2012, email from Petersen, in which he stated “[my] charge to you continues to be
that: our most urgent priority is seeing students . . . compliance is to occur only after the students
are taken care of . . . .” (Halter Decl. Ex. 58.) Plaintiff responded to that email by stating,
“[g]oing forward, my sole priority will be to see students. All Compliance activities will be
secondary, and at your discretion.” (Id.)
Petersen continued to raise concerns concerning Plaintiff’s persistent failure to
give adequate advance notice of the days she planned to take paid time off or deviate from her
ordinary schedule. (Id. ¶ 158.) Plaintiff agrees that it was reasonable for Petersen to request
advance notice, but maintains that she did provide such notice when she was able to. (Pl. 56.1 ¶
161.) She contends, however, that Petersen did not accommodate changes in her schedule
because he stated at a meeting that it was not possible to give her defined hours for compliance

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and defined hours for student services since ICE could not control when students would come in.
(See id. ¶ 160; Halter Decl. Ex. 53 at 2.) Plaintiff also testified that, while Peterson never
prevented her from leaving early on Fridays, he made it difficult for her to do so because he gave
her work as she was preparing to leave on Friday afternoons, and “one time as Yeger was
preparing to leave on a Friday afternoon Petersen walked over to her with a stack of papers, told
her the papers were ready to go out, [and] slammed the papers on Yeger’s desk with a disgusted
look on his face.” (Pl. Resp. 56.1 ¶ 8.)

HR Department’s Attention to Plaintiff’s Medical Costs
On November 6, 2012, Kennedy, ICE’s Director of HR, emailed another person
in HR, Mary Bartolini, discussing the rise in Aetna’s insurance rate quote, with Kennedy writing,
“this is very confidential what I am about [sic] share and see if we can figure out who would cost
us so much money.” (Halter Decl. Ex. 52.) In a later email chain, Bartolini writes, “[h]ow could
I forget the following: Debby Y has Aetna - high - her surgery in the summer,” to which
Kennedy replies, “Debby’s surgery will [sic] covered under workers comp. But all others are
probably Aetna. Oh boy.” (Id.)

Performance Improvement Plan
As part of the 2012 annual performance review process, Plaintiff completed a
self-assessment in which she rated herself “exceeding” goals in every performance category
except for the “communicates effectively” category, for which Plaintiff rated herself as “fully
performing.” (Def. 56.1 ¶ 186.) In the 2012 performance evaluation Petersen prepared, which
was dated January 4, 2013, he noted his disturbance that Plaintiff’s self-evaluation seemed to

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reflect a complete lack of understanding of the significant performance deficiencies Petersen had
repeatedly discussed with her and that had been outlined in her prior performance reviews. (Id. ¶
189.) Plaintiff disputes the accuracy of Petersen’s evaluation by citing the selected positive
portions of her evaluations for 2009 and 2010, comments in two emails sent by Aronowitz, and
her own statements. (Pl. Resp. 56.1 ¶ 189.) In Plaintiff’s addendum dated January 22, 2013,
written in response to the 2012 evaluation, Plaintiff contests the accuracy of the evaluation, and
states, “[w]hen you first requested that I assist F/A, it was for instances that my assistance was
requested. However, you now requesting [sic] that I become a fully functional F/A counsel
which I readily agree to do.” (Baken Decl. Ex. 33.) Plaintiff’s addendum did not contain any
allegations of discrimination on any basis. (Id.)
As a follow-up to her 2012 performance evaluation, on or about January 8, 2013,
Plaintiff was put on a Performance Improvement Plan (“PIP”), which emphasized the critical
nature of Plaintiff’s continued failure to meet with students and the importance of providing her
supervisors with reasonable advance notice of modifications to her ordinary work schedule, and
warned that further corrective action might take place, including termination, absent significant
and sustained improvement. (See id. ¶¶ 195-202.) Plaintiff admits that she and Petersen had
discussed the importance of timely student counseling on numerous occasions before the PIP
was imposed. (Pl. 56.1 Resp. ¶ 203.)
On February 25, 2013, Petersen met with Plaintiff to discuss additional incidents
in which Plaintiff had avoided meeting students and changed her work schedule without prior
notification. (Def. 56.1 ¶ 210.) In a follow-up email to that discussion, Plaintiff again confirmed
that “seeing students is my top priority . . . working on the F/A files for Compliance review . . .
is secondary.” (Baken Decl. Ex. 35.) Plaintiff also indicated that she had “notified” a Financial

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Aid Office staff member that she was going to be late because she was not feeling well, but she
did not deny that she failed to notify Petersen, her supervisor. (Id.) In response to Plaintiff’s
email, Petersen stated “[m]y understanding is that you confirmed the occurrence of [two student
counseling incidents], understand both were examples of unacceptable judgment . . . in
contradiction to the [PIP] you signed on January 22nd” and that “this is your final warning any
further incidents will result in disciplinary action up to and including termination.” (Id.)
Plaintiff’s email response did not dispute Petersen’s characterization of the two incidents. (Id.)
Petersen then further instructed Plaintiff to communicate her needs for time off by email, rather
than by voice mail. (Id.)

Plaintiff Makes Claims of Discrimination
On February 26, 2013, one day after the February 25, 2013, meeting between
Plaintiff and Petersen, Plaintiff delivered a letter to Defendant from James W. Halter, Esq., of
Liddle & Robinson LLP (“L&R”), alleging that Plaintiff had been subjected to discrimination on
the basis of her age, gender, religion and need to take leave in connection with her October 2,
2009, injury. (Def. 56.1 ¶¶ 217-18.) This was the first time that Plaintiff raised claims of
discrimination.

Padilla Replaces Tunstall
On June 10, 2013, Tunstall was replaced by Martha Padilla Mercedes (“Padilla”)
as Defendant’s new Director of Financial Aid. (See id. ¶ 229.) Padilla was 52 years old when
she was hired. (Id. ¶ 232.) She was paid $85,000 per year, a higher salary than Plaintiff’s, but
lower than the salary Tunstall had been paid. (Id. ¶ 333.) Padilla had previously worked at the

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Swedish Institute (a school of massage and acupuncture) for thirteen years, during nine of which
she served as the Director of Financial Aid, supervising one person, and thereafter for a CPA
firm, and as a consultant for schools. (Padilla Dep. 9-10, 14-15.) Following her hire, Padilla
became Plaintiff’s direct supervisor. (Def. 56.1 ¶ 233.) Plaintiff’s job duties and annual salary
did not change when Padilla became her supervisor. (Id. ¶ 236.) Within two weeks of Padilla’s
hiring, Padilla complained about Plaintiff to Petersen, specifically that Plaintiff would not
answer the phone when it rang even though Plaintiff was the only one in the office. (Padilla
Dep. at 96-97.) Plaintiff asserts that the phones rang in a particular order with the main line
ringing first. (See Pl. Resp. 56.1 ¶ 239.) Plaintiff also claims that Padilla’s complaints were
motivated by Padilla’s discussions with Tunstall and Kennedy, and their “accusations” against
her. (See id.) To support this claim, Plaintiff points to an email chain in which Kennedy, on
June 10, 2013, forwarded to Padilla a log Tunstall had been keeping of Plaintiff’s activities with
respect to seeing or not seeing students. (Halter Decl. Exs. 81, 82.) In the same chain, Kennedy
wrote, “my issue with the log is that if she was spoken to as soon as the situation occurred we
could have held her accountable. He just watched and documented and didn’t share until it was
too late,” and that “[t]his will be a good opportunity for you to listen, observe and make your
own assessment.” (Id.)
Around July 22, 2013, Plaintiff met with Kennedy, who conducted an
investigation into Plaintiff’s complaints and concluded that there had been no discrimination
against her. (See id. ¶¶ 253-59.) Although Plaintiff asserts that Kennedy’s investigation process
was flawed (and the conclusion of no discrimination incorrect), Plaintiff identifies no evidence
indicative of a flawed investigation by Kennedy. The notes documenting the meeting, instead,
reflect that Kennedy repeatedly gave Plaintiff opportunities to identify instances of

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discrimination and that Plaintiff only responded, in substance, that Petersen made her feel she
was always doing something wrong, that her opinions were second guessed, and that she was
made to report to Tunstall. (See Halter Decl. Ex. 84.) Plaintiff does not dispute that the notes
were an accurate documentation of what transpired in the meeting.
On July 23, 2013, Plaintiff met with Kennedy, Padilla, and Petersen to discuss
complaints Padilla had received from financial aid employees regarding Plaintiff’s refusal to
fulfill student counseling duties on three occasions in June and July, 2013. (Def. 56.1 ¶ 266.)
Plaintiff does not dispute that the complaints were made, asserting only that Padilla was unduly
influenced by her discussions with Kennedy. (Pl. Resp. 56.1 ¶ 266.) Plaintiff does not dispute
she failed to meet with the students on the three identified occasions, but claims that she was
either on the phone, taking a break, or with another student at the relevant times. (Baken Decl.
Ex. 41.) Notes of the July 23, 2013, meeting relate that Padilla stated that Plaintiff was not being
a team player and was confrontational, citing an example of Padilla asking Plaintiff five times to
fix her phone so she would be able to respond to calls and Padilla ultimately having to contact IT
herself to resolve the issue. (See id.)
At the July 23, 2013, meeting, Petersen put Plaintiff on paid administrative leave.
(Id. ¶ 271.) Kennedy continued the internal investigation into the co-worker complaints against
Plaintiff, concluded that Plaintiff had failed to meet with students in the three incidents without a
valid excuse, and recommended that Plaintiff’s employment be terminated. (Id. ¶¶ 277-78.)
Petersen, however, permitted Plaintiff to return to work on or about August 13, 2013. (Id. ¶
279.) Upon her return, Plaintiff was only required to focus her efforts on counseling students
and all Title IV compliance duties were assigned to Padilla and another employee. (Id. ¶ 281.)
Plaintiff’s title was changed to Associate Director of Financial Aid and Plaintiff’s desk was

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relocated to the Office of Financial Aid’s main room, but her salary did not change. (Id. ¶¶ 28284.)
After Plaintiff’s return from leave, Padilla made additional complaints regarding
Plaintiff’s refusal to meet with students and lack of notice regarding schedule modifications. (Id.
¶¶ 285-93.) In response to those complaints, Plaintiff claimed that she was not able to give
notice, that she did give notice, or that other employees were available to see students while she
was busy. (Halter Decl. Ex. 88.)
On October 15, 2013, Petersen, Kennedy, and Padilla again met with Plaintiff.
(Id. ¶ 294.) During the meeting, Petersen advised Plaintiff that Padilla had received a message
earlier in the day from a student who stated that she had been leaving urgent messages in
Plaintiff’s voicemail and Plaintiff had not contacted her. (Id. ¶ 295.) According to the meeting
notes, Petersen told Plaintiff that he had checked her outgoing message, which stated that she
was not in the office and to please contact Tunstall (who had left ICE on June 21, 2013) or
Charles DePew (a prior financial aid representative who had left ICE October 12, 2012, and
returned for three weeks in June 2013). (Baken Decl. Ex. 44.) Plaintiff then stated that she did
not know how to change her voicemail salutation and that the phone at her new desk did not
have a voice message button and she did not know how to use it. (Id.) Petersen then asked if
Plaintiff had picked up any voice messages since she had returned in August to her new position
as Assistant Director of Financial Aid, and Plaintiff responded “no that she didn’t know how.”
(Id.) Plaintiff stated that she had not asked IT for help, but had told a subordinate to get in touch
with Charles DePew for his PIN because her phone was his original phone (Id.; Yeger Dep.
516.) According to the meeting notes, Plaintiff eventually apologized for not contacting IT
herself, and stated that she had contacted IT and they were going to help her correct the problem.

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(Id.)
That same day, Petersen asked John Shields, Defendant’s Director of Information
Technology, to inspect Plaintiff’s telephone. (Def. 56.1 ¶ 300.) It is undisputed that John
Shields inspected the telephone at Plaintiff’s desk and was able to access Plaintiff’s voicemail
messages without any difficulty, and confirmed that there were 39 new messages on the
voicemail. (Id. ¶¶ 301-302.) At her deposition, Plaintiff testified that she did not recall whether
she changed her outgoing message when she returned to work in August 2013. (Yeger Dep.
516-17.) Plaintiff also testified that she “most probably” told Petersen that she did not check the
voicemail messages in her old office, but did not tell him that she had not picked up any
voicemail after her return. (Id. 517.) Petersen testified that Shields confirmed that Plaintiff’s
phone was working based on Plaintiff’s extension at her new desk, and that Plaintiff’s voicemail
messages are connected through the IT computer and are not located in any physical phone.
(See Petersen Dep. 355-56.) Petersen further testified that it was the responsibility of an
individual employee to notify IT of any desk moves. (Id. 357.) Although Plaintiff’s response to
Defendant’s 56.1 statement asserts that “the 39 voicemail messages were not assigned to the
extension Yeger was using,” this statement is contradicted by the record and otherwise lacks
evidentiary support, given that Plaintiff did not testify as to any mistaken extension assignment
and there is no evidence otherwise supporting the claim that Plaintiff’s extension was changed
simply because her desk was physically moved. Accordingly, there is no genuine dispute that
Plaintiff did not attempt to check her voicemail messages upon her return from leave and/or did
not contact IT to address any inability to access her voicemail, the result of which was 39
unheard voicemail messages on Plaintiff’s extension. Petersen terminated Plaintiff’s
employment that same day. (Id. ¶ 303.)

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Additional Evidentiary Proffers in Connection with Discrimination Allegations
In opposition to Defendant’s motion for summary judgment, Plaintiff submitted
an affidavit in which she alleges that Petersen spoke to her in a condescending manner, was
disrespectful, “raised his hand toward my face to silence me,” and that she did not witness him
exhibit similar behavior “towards younger, male of non-Sabbath-observant co-workers [sic].”
(Yeger Aff., docket entry no. 48.)
Plaintiff also submitted the declaration of Nadia Levit, Controller of ICE from
January 2009 to August 2011, in which Levit stated that she found Petersen “to be disrespectful
in the way he treated me and other women to which he interacted, including Ms. Yeger, that Mr.
Petersen did not display this same level of disrespect towards men,” and that he was more
skeptical towards information relayed by women and unwilling to make accommodations for
women such as flexible hours. (Halter Decl. Ex. 98.) Although Levit claims that she
complained to Dana Malach, then-Director of HR, about Petersen, Malach does not recall any
such conversations. (Id.; Malach Dep. 45, 47-48.) In addition, Plaintiff points to a February
2013 incident in which Tunstall screamed “bitch” at a female coworker (Halter Decl. Exs. 66,
73) and another May 1, 2013, incident, during which the former female employee stated to HR
that she felt Petersen was being disrespectful (see Halter Decl. Exs. 76, 101.)

Procedural History; Motion to Strike
Plaintiff filed the instant lawsuit on October 14, 2014, and filed an Amended
Complaint on December 19, 2014 (docket entry no. 9.) Pursuant to a pre-trial scheduling order
issued on January 30, 2015, non-expert witness discovery was to be completed by July 31, 2015.
(Docket entry no. 17.)

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On November 4, 2015, Defendant filed the instant motion for summary judgment.
Plaintiff filed her opposition papers on November 18, 2015. Along with Defendant’s reply, filed
on December 18, 2015, Defendant filed an affidavit by John Shields with three exhibits,
including a copy of an August 12, 2013, Service Order obtained from Advanced Telecom
(“Shields Exhibit 1”) and a copy of a transcript PhoneTag generated of a message Plaintiff left
on the Helpdesk on September 3, 2013 (“Shields Exhibit 2,” and together with Shields Exhibit 1,
“Shields Exhibits”). Plaintiff moves to strike the Shields Exhibits, arguing that they were
produced for the first time on December 18, 2015, the date Defendant’s reply brief was filed.

DISCUSSION
Summary judgment is warranted if “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). Material facts are those that “might affect the outcome of the suit under the
governing law,” and there is a genuine dispute where “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Rojas v. Roman Catholic Diocese of Rochester,
660 F.3d 98, 104 (2d Cir. 2011) (internal quotation marks and citation omitted). The Court must
“construe all evidence in the light most favorable to the nonmoving party, drawing all inferences
and resolving all ambiguities in its favor.” Dickerson v. Napolitano, 604 F.3d 732, 740 (2d Cir.
2010) (citation omitted).

I.

Motion to Strike
Plaintiff moves to strike the Shields Exhibits, contending that these documents

should have been produced in response to requests served by Plaintiff before the close of

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discovery. “If a party fails to provide information or identify a witness as required by Rule 26(a)
or (e), the party is not allowed to use that information or witness to supply evidence on a motion,
at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed. R.
Civ. P. 37(c)(1). To determine whether preclusion is warranted under Rule 37, courts consider
the following factors: “(1) the party’s explanation for the failure to comply with the disclosure
requirement; (2) the importance of the testimony of the precluded witness [or the importance of
the precluded evidence]; (3) the prejudice suffered by the opposing party as a result of having to
prepare to meet the new [evidence]; and (4) the possibility of a continuance.” See Design
Strategy, Inc. v. Davis, 469 F.3d 284, 296 (2d Cir. 2006) (internal quotation marks and citation
omitted). No showing of “bad faith” is required. Id.
In Plaintiff’s First Request for Documents, dated March 31, 2015, Plaintiff
requested “[a]ll Documents concerning the termination of Yeger’s employment at ICE” and “[t]o
the extent not produced in response to previous document requests, all documents concerning
Yeger’s claims and/or ICE’s defenses in this action.” (Halter Decl. Supp. Mot. Strike, Ex. 2,
docket entry no. 57.) In Plaintiff’s Second Request for Documents dated August 28, 2015,
Plaintiff requested “[a]ll directories of ICE telephone extensions, including, but not limited to,
the audio telephone directory associated with ICE’s voicemail system from October 2012
through October 2013” and “[a]ll documents concerning ICE’s conversion of Plaintiff’s private
office into a conference room in or around 2013.” (Halter Decl. Supp. Mot. Strike, Ex. 3.)
Although the Shields Exhibits technically fall within Plaintiff’s discovery requests, the requests
were broadly worded.
However, Plaintiff’s alleged failure to check her voicemails for the two months
leading up to her termination is a key fact underlying Defendant’s contention that Plaintiff was

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terminated for legitimate reasons, and was specifically explored in Plaintiff’s deposition and
presented in Defendant’s instant motion for summary judgment. (See, e.g., Pl. Resp. 56.1 ¶¶
301-302.) Defendant was on notice that Plaintiff would attempt to claim in some form that her
new telephone assignment prevented her from checking her voicemail (regardless of the merits
of that claim). Defendant’s failure to produce the Shields Exhibits in response to Plaintiff’s
document requests when, according to Defendant, Plaintiff’s failure to check her voicemail for
two months was essentially the last straw that led Petersen to terminate her, was not substantially
justified. The Court finds that Plaintiff is prejudiced by the tender of Shields Exhibits in
connection with this summary judgment motion practice because she has not had the ability to
investigate, challenge nor depose witnesses about those particular documents. Discovery,
moreover, closed several months ago and the parties have completed their summary judgment
briefing. Accordingly, Plaintiff’s motion to strike the Shields Exhibits is granted.

II.

Motion for Summary Judgment
A.

Discrimination Claims
Plaintiff’s ADEA, Title VII, and NYSHRL discrimination claims are analyzed

pursuant to the burden shifting framework established in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1972). See Spiegel v. Schulmann, 604 F.3d 72, 80 (2d Cir. 2010); Cross v. New
York City Transit Auth., 417 F. 3d 241, 248 (2d Cir. 2005).
Under the McDonnell Douglas framework, Plaintiff must first establish a prima
facie case of discrimination by a preponderance of the evidence, namely that (1) she is a member
of a protected class; (2) she was qualified for her position; (3) she suffered an adverse
employment action; and (4) the adverse employment action she experienced occurred under

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circumstances giving rise to an inference of discrimination. See Allen v. Murray-Lazarus, 463
F. App’x 14, 16 (2d Cir. 2012). If Plaintiff makes out a prima facie case, the burden shifts to
Defendant “to articulate some legitimate, nondiscriminatory reason” for the adverse actions.
McDonnell Douglas, 411 U.S. at 802.
If Defendant meets this burden, Plaintiff then has the opportunity to prove by a
preponderance of the evidence that the legitimate reasons offered by the defendant were not its
true reasons but were pretext for discrimination. McDonnell Douglas, 411 U.S. at 804. To
establish pretext on her gender and religious discrimination claims under Title VII and the
NYSHRL, Plaintiff must “produce not simply ‘some’ evidence, but ‘sufficient evidence to
support a rational finding that the legitimate, non-discriminatory reasons proffered by the
[defendant] were false, and that more likely than not [discrimination] was the real reason for the
[employment action.]’” Weinstock v. Columbia University, 224 F.3d 33, 42 (2d Cir. 2000)
(alteration in original) (citation omitted); see Bickerstaff v. Vasser College, 196 F.3d 425, 44748 (2d Cir. 1999) (citations omitted) (the central question on summary judgment in Title VII
case is whether, taking into account all of the circumstances, plaintiff has “presented sufficient
admissible evidence from which a rational finder of fact could infer that more likely than not she
was the victim of intentional discrimination.”) To establish pretext for her ADEA claim,
Plaintiff must demonstrate that Defendant’s stated reasons were false and that “but for” her age,
she would not have experienced the challenged materially adverse employment actions. Gross v.
FBL Fin. Servs., Inc., 557 U.S. 167, 180 (2009) (ADEA); Mikinberg v. Bemnis Co. Inc., 555 F.
App’x 34, 35 (2d Cir. 2014) (assuming that the “but for” test applies to NYSHRL age
discrimination claims, but finding that case failed even under a “motivating factor” test). In
considering evidence of discrimination, the Court is conscious that discrimination “will seldom

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manifest itself overtly” and also that it must “carefully distinguish between evidence that allows
for a reasonable inference of discrimination and evidence that gives rise to mere speculation and
conjecture.” Bickerstaff, 196 F.3d at 448 (citations and alterations omitted).
The NYCHRL requires a separate and independent analysis from any federal and
state law claims, and is construed “broadly in favor of discrimination plaintiffs, to the extent that
such a construction is reasonably possible.” Mihalik v. Credit Agricole Cheuvreux N. Amer.,
Inc., 715 F.3d 102, 109 (2d Cir. 2013). In order to obtain summary judgment on a NYCHRL
claim, a Defendant must show that “no jury could find defendant liable under any of the
evidentiary routes: under the McDonnell Douglas test, or as one of a number of mixed motives,
by direct or circumstantial evidence.” See Gioia v. Forbes Media LLC, 501 F. App’x 52, 56 (2d
Cir. 2012); see also Ya-Chen Chen v. City University of New York, 805 F.3d 59, 76 (2d Cir.
2015) (New York courts apply similar burden-shifting framework to the NYCHRL but, as to the
third step, “summary judgment is appropriate if no reasonable jury could conclude either that the
defendant’s ‘reasons were pretextual,’ or that the defendant’s stated reasons were not its sole
basis for taking action, and that its conduct was based at least ‘in part on discrimination.’”
(internal citations omitted)).
Starting with the first step of the McDonnell-Douglas inquiry, the first two
elements of the prima facie case of discrimination are easily established here. Plaintiff is a
member of protected classes on the basis of her age, religion, and gender. Plaintiff had
previously been the Director of Financial Aid, and in fact had been promoted to that position by
Defendant in 2009 on the basis of her performance. Although Defendant presents evidence that
Plaintiff was subsequently deficient in the Director of Financial Aid role, there is sufficient
evidence on the record, for instance the positive aspects of Plaintiff’s performance reviews, to

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support a finding that Plaintiff was qualified for the job. It is undisputed that Plaintiff suffered
several adverse employment actions, including the material diminution of her responsibilities
and her termination, that satisfy the third element of her prima facie case. Although the question
of whether Plaintiff has proffered a sufficient basis for an inference of discriminatory motivation
is a much closer one, given the minimal burden required at the prima facie stage, the Court
assumes for purposes of this analysis that Plaintiff has satisfied the fourth prong of the prima
facie case as well, and moves to the second step of the McDonnell Douglas analysis.
Defendant has met its burden of proffering evidence that it had legitimate, nondiscriminatory reasons for taking the alleged adverse material employment actions against
Plaintiff. Defendant submitted evidence demonstrating that it restructured the Office because of
business need - that is, it wanted the Office to perform a more robust student interaction and
recruitment function, rather than being principally compliance-oriented. There is also consistent
and corroborated evidence demonstrating a basis for Defendant’s judgment that aspects of
Plaintiff’s performance became deficient beginning around 2011, and that the deficiencies
continued until her termination in October 2013, and that her ultimate termination was
precipitated by her failure to attend to voicemail messages for two months. Because Defendant
has provided a legitimate, non-discriminatory reason for the actions against Plaintiff, the burden
falls back to Plaintiff to demonstrate that the legitimate reasons offered by Defendant were
merely pretext for discrimination.

1.

Gender Discrimination

In support of her claim that she was discriminated against on the basis of her
gender, Plaintiff points principally to: (1) Aronowitz’ comments regarding “aggressiveness” of

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the Office and Plaintiff’s need to improve her technology acumen; (2) Plaintiff’s prior positive
work reviews; (3) alleged prior complaints of gender discrimination by other women; and (4) the
hiring of Vince Tunstall into her old title. Construing all of these facts in Plaintiff’s favor and
taking into account all of the circumstances, Plaintiff has not presented sufficient evidence to
permit a rational fact finder to conclude that more likely than not she was the victim of
intentional discrimination on the basis of her gender or that gender played a motivating role in
the adverse employment decisions. See Bickerstaff, 196 F.3d at 447; Gioia, 501 F. App’x at 56.
As an initial matter, it is undisputed that Plaintiff received a promotion from ICE
in September 2009. See, e.g., Ascione v. Pfizer, Inc., 312 F. Supp. 2d 572, 578 (S.D.N.Y. 2004)
(receiving a promotion within one month of alleged denial of another promotion “severely
undermines suggestion” of employment discrimination). It is also undisputed that Plaintiff did
not raise any issues of gender discrimination, or any other type of discrimination, despite the
numerous conversations she had with ICE supervisors and HR about her job performance, prior
to the February 26, 2013, letter sent by her counsel—which was delivered more than two years
after the October 2011 Office restructuring (the first of her adverse employment events) and ten
months after Tunstall began working at ICE in May 2012. These circumstances undermine any
rational inference that it is “more likely than not” that Plaintiff was discriminated against on the
basis of her gender.
The facts Plaintiff cites do not frame any genuine material fact issues in this
regard. Aronowitz’ statements that the Office should be more “aggressive” with respect to sales
and that Plaintiff should better utilize technology are not indicative of gender or age animus.2

2

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The Court also notes that Aronowitz had testified that Plaintiff had an “aggressive”
demeanor towards co-workers, which increased over time (Def. 56.1 ¶¶ 28-31),
further undermining any inference that Aronowitz’ comments concerning the
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The hiring of Tunstall, a man, does not by itself create a rational inference of gender
discrimination. Plaintiff has not proffered any evidence demonstrating that she was similarly
situated to Tunstall to support a rational inference that his hiring or the disparity in their
respective compensation and duties were discriminatory. See Graham v. Long Island R.R., 230
F.3d 34, 39 (2d Cir. 2000) (“A plaintiff may raise . . . an inference [of discrimination] by
showing that the employer subjected h[er] to disparate treatment, that is, treated h[er] less
favorably than a similarly situated employee outside h[er] protected group.”) Further,
Aronowitz’ decision to restructure the Office and reassign Plaintiff was made prior to the hiring
of any particular individual, male or female, and Tunstall himself was eventually replaced by
Padilla, who was a 52 year old woman.3 Moreover, regardless of what ultimately may have
occurred in practice, Tunstall was not initially hired to replace or supervise Yeger but to
complement her role as an equal in the reporting chain. (Def. 56.1 ¶¶ 116, 119; Kennedy Dep.
58.)
Plaintiff also points to selected positive aspects of her performance reviews,
principally comments from the 2009 review, as evidence that the reasons given for her change of
title, salary disparity and ultimate termination were pretextual. But Plaintiff entirely ignores the
negative aspects of her performance reviews, which document the need for improvement in
Plaintiff’s communication and student-facing skills, and later her failure to meet students, among

Office’s need to be more “aggressive” with respect to sales were gender-motivated.
3

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Plaintiff also points to the fact that Padilla was paid less than Tunstall in the same
role as evidence that gender discrimination occurred as against her. However,
Plaintiff has not genuinely disputed the disparity in Padilla and Tunstall’s respective
experience when they were hired (see Def. 56.1 ¶¶ 102-107; Padilla Dep. 9-10, 1415), nor has she provided evidence of unwarranted salary disparities with respect to
herself and any comparable male employee at ICE, or amongst other comparable
female and male employees at ICE.
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other things. More importantly, an employee’s general disagreement with a supervisor’s
evaluation of the employee’s job performance, by itself, does not create an inference of
discrimination or constitute proof of pretext. See Ricks v. Conde Nast Publ’ns., Inc., 92 F. Supp.
2d 338, 347 (S.D.N.Y. 2000); Ascione, 312 F. Supp. 2d at 578 (“This Court does not sit as a
super-personnel department that reexamines an entity’s business decisions.” (citation omitted));
Richetts v. Ashcroft, No. 00 Civ. 1557, 2003 WL 1212618, at *7 (S.D.N.Y. Mar. 17, 2003)
(“[Plaintiff’s] own subjective evaluations that she was better qualified than her coworkers are
insufficient to demonstrate discrimination.”). The relevant question is whether Defendant
believed that it made employment decisions for legitimate, rather than discriminatory, reasons.
As the Second Circuit has stated, “[i]n a discrimination case . . . we are decidedly not interested
in the truth of the allegations against plaintiff. We are interested in what motivated the employer
. . . .” McPherson v. New York City Dep’t of Educ., 457 F.3d 211, 216 (2d Cir. 2006) (internal
quotation marks and citation omitted) (emphasis in original); see also Kolesnikow v. Hudson
Valley Hosp. Center, 622 F. Supp. 2d 98, 111 (S.D.N.Y. 2009) (the question is not “whether the
employer reached a correct conclusion in attributing fault [to the plaintiff] . . . , but whether the
employer made a good-faith business determination”); Ascione, 312 F. Supp. 2d 572, 578
(declining to determine whether plaintiff actually falsified time sheets so long as her employer
reasonably believed she did so). Accordingly, Plaintiff’s own perception of her performance and
her disagreements with her employer’s evaluation of her performance are largely irrelevant
without affirmative evidence demonstrating Defendant intended to discriminate against her on
the basis of her gender. See Weinstock, 224 F.3d at 42; Ascione, 312 F. Supp. 2d at 578.
Aside from her disputes concerning Defendant’s evaluation of her job
performance and comments regarding aggressiveness, Plaintiff’s evidence consists of her own

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claims of disrespectful behavior by Petersen, and complaints from two former female employees
about Petersen being disrespectful and unaccommodating towards women, but not men.
Plaintiff specifically points to an incident in which Petersen raised his hand to silence her, spoke
to her in a condescending manner, and made her feel second-guessed. (See, e.g., Halter Decl.
Ex. 84.) Plaintiff also points to a February 2013 incident in which Tunstall screamed “bitch” at a
female employee. (Halter Decl. Exs. 66, 73.) As a general matter, anti-discrimination laws are
not a way to enforce a civility code. See Minkinberg v. Bemis Co., Inc., 555 F. App’x 34, 36 (2d
Cir. 2014) (sparse comments related to one’s protected status are inadequate to suggest
employer’s reasons for termination are pretextual); cf. Venezia v. Luxoticca Retail N. Am. Inc.,
No. 13 CV 4467, 2015 WL 5692146, at *12 (S.D.N.Y. Sept. 28, 2015) (complaints regarding
rude or condescending remarks by a supervisor does not rise to the level of protected activity).
Plaintiff’s general complaints about Petersen’s demeanor towards women are not tied to any
specific adverse action, nor does she claim that the offensive behavior rose to the level of a
hostile work environment. Moreover, the “bitch” comment directed by Tunstall at another
female employee falls squarely within the realm of one-off stray remark that does not give rise to
an inference of discrimination. See Gioia, 501 F. App’x at 55 (“[S]tray remarks, even if made
by a decisionmaker, do not constitute sufficient evidence to make out a case of employment
discrimination.” (citation omitted)). Plaintiff’s allegations regarding Petersen and Tunstall
suggest, at most, an uncivil atmosphere.
The alleged incidents involving Petersen and Tunstall do not, in any event support
a rational inference that Plaintiff suffered adverse employment actions as the result of gender
discrimination. Plaintiff did not begin reporting to Petersen until September 2012, nearly a year
after Plaintiff had been reassigned by Aronowitz to be the Director of Compliance. Plaintiff has

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raised no allegations of statements or attitudes indicative of gender bias on the part of
Aronowitz. It was also Aronowitz who determined how much Plaintiff and Tunstall were each
paid. By the time Plaintiff began reporting to Petersen, Aronowitz had already repeatedly raised
performance issues concerning Plaintiff’s communication skills, compliance-laden approach,
availability and scheduling. Moreover, beginning in June 2013, when Padilla replaced Tunstall
and became Plaintiff’s direct supervisor, Padilla began discerning performance deficiencies in
Plaintiff within two weeks, having been told by Kennedy to “observe and make your own
assessment.” (Halter Decl. Exs. 81, 82.) Plaintiff makes no claim that Padilla was unduly
influenced by Petersen. (See Pl. Resp. 56.1 ¶ 239.)
Plaintiff herself did not raise any claims of discrimination until February 2013,
despite having had numerous opportunities to do so in the many meetings she had with
supervisors and HR concerning her performance. An independent investigation by Kennedy,
moreover, concluded that Plaintiff’s discrimination claims had no merit. (See Halter Decl. 84.)
Indeed Kennedy, after investigating co-worker complaints that Plaintiff was refusing to see
students, recommended Plaintiff’s termination, finding that Plaintiff had no valid excuse.
Plaintiff proffers no evidence indicating that Kennedy or Padilla, both women, harbored
discriminatory intent, and it was Petersen who permitted Plaintiff to return from leave despite
Kennedy’s recommendation of termination.
With respect to Plaintiff’s termination, which was ordered by Petersen, there is no
genuine dispute based on the record that, from the time Plaintiff returned from administrative
leave in August 2013 to her termination in October 2013, Plaintiff did not pick up any of the 39
unheard voicemail messages from her extension and/or did not take any steps to ensure that she
could retrieve them. There is no genuine dispute based on the record that it was Defendant’s

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reasonable belief that Plaintiff was underperforming her responsibilities that led to the adverse
employment actions against her, and not any discrimination based on gender. Likewise, under
the more “broadly” construed NYCHRL standard, Plaintiff’s claim of gender discrimination fails
because she has not proffered facts sufficient to enable a rational factfinder to conclude that
gender discrimination was even a partial motivation for any of ICE’s employment actions. See
Chen, 805 F.3d at 76. Accordingly, Plaintiff’s claims for gender discrimination are dismissed.

2.

Age Discrimination

With respect to her age discrimination claim, Plaintiff points to essentially the
same facts she cites in support of her gender discrimination claim, specifically: (1) Aronowitz’
comments regarding the “aggressiveness” of the Office and Plaintiff’s need to improve her
technology acumen; (2) the hiring of Tunstall and Padilla, both of whom were younger than
Plaintiff; and (3) her positive performance reviews.
Just as Plaintiff’s evidence was insufficient to support a rational inference of
gender discrimination, Aronowitz’ comments concerning the “aggressiveness” of the Office and
Plaintiff’s need to improve her technology acumen are not indicative of animus towards old age
as they were not explicitly age-related and did not raise issues peculiar to older individuals.
Both Tunstall and Padilla were over the age of 40 when they were hired, and thus were
themselves protected under the ADEA, defeating any rational inference that “but for” Plaintiff’s
age, she would not have suffered adverse employment actions. Furthermore, as discussed above
with respect to Plaintiff’s claim for gender discrimination, Plaintiff’s selective citation of only
the positive aspects of her performance reviews while ignoring the negative aspects of those
same reviews does not support a rational inference of pretext. Cf. Ricks., 92 F. Supp. 2d at 347;

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Ascione, 312 F. Supp. 2d at 578.
Accordingly, because Plaintiff has not put forth sufficient evidence of pretext to
create a genuine issue of fact as to whether age was a but-for cause, or even a partial motivating
factor, with respect to Plaintiff’s adverse employment actions, Plaintiff’s federal, state and local
law age discrimination claims are dismissed. See Mikinberg, 555 F. App’x at 35.

3.

Religious Discrimination

With respect to her claim of religious discrimination, Plaintiff asserts that there is
evidence that Plaintiff’s Sabbath observance contributed to Aronowitz’ complaint regarding her
“face time issues” and cites evidence that Aronowitz had asked HR to approach Plaintiff about
her schedule “returning to normal,” that Defendant had altered Tunstall’s offer letter to include a
requirement that he had to work nights and weekends, and that HR had expressed concern
regarding the impact of Yeger’s medical condition on the cost of ICE’s insurance. (See Pl. Br.
22-23.) The Court finds that Plaintiff has failed to proffer sufficient evidence to sustain her
burden of proof as to her religious discrimination claims.
As an initial matter, it is undisputed that Aronowitz was aware of Plaintiff’s need
to observe the Sabbath prior to hiring Plaintiff in 2008, and that ICE accommodated her need to
do so throughout her employment. (See Def. 56.1 ¶¶ 3, 8.) It is also undisputed that Plaintiff,
despite her religious observance, was promoted to the Director of Financial Aid position in 2009
by Aronowitz, the very individual whom Plaintiff now claims discriminated against her on the
basis of her religion. (Id. ¶ 18.)
The evidence proffered by Plaintiff is insufficient to establish pretext or otherwise
prove that religious discrimination was “more likely than not” the reason or a motivating factor

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for her re-designation in title, salary disparity, or termination. Plaintiff mischaracterizes
Aronwitz’ testimony in asserting that “Yeger’s Sabbath observance was also one of the ‘face
time’ issues Aronowitz had.” (Pl. Opp. 23). Aronowitz is Jewish himself and the portion of
Aronowitz’ deposition cited by Plaintiff merely reflects the fact that Aronowitz was unsure
precisely when sundown was in May and, accordingly, when Plaintiff would leave for her
religious observance. (See Aronowitz Dep. 297-98.) As mentioned above, Aronowitz was fully
aware of Plaintiff’s need to modify her schedule due to the Sabbath prior to hiring Plaintiff and it
is undisputed that Plaintiff never worked later than 1:30 p.m. on Fridays or on Saturdays. (Def.
56.1 ¶ 8.)
Plaintiff also claims that “Aronowitz altered the offer letter for Tunstall to include
that he would have to work nights and weekends in contrast to Yeger who was not able to work
Friday evenings or Saturdays.” (Pl. Opp. at 29 (citing Halter Decl. Exs. 35 and 36.)) Kennedy
testified that she added the provision to the letter at Aronowitz’ direction, but had seen the
provision in other offer letters also. (Kennedy Dep. 67-68, 71-73.) The fact that Aronowitz
wanted to specify in Tunstall’s offer letter that he might have to work during the hours that
Yeger was not available to work is entirely logical, and says nothing about Aronowitz’ view
concerning Yeger’s religious observance. Moreover, as Kennedy testified, Tunstall’s
replacement, Padilla, did not have that particular provision in her offer letter (see id. 71), further
dispelling any rational inference of religious discrimination against Plaintiff from the inclusion
of such provision in Tunstall’s offer letter. Aronowitz’ May 2012, email to HR regarding
Plaintiff’s schedule returning to normal concerned Plaintiff taking time off for physical therapy,
and specifically acknowledged in no uncertain terms that “she has standing approval to leave at
2PM for religious observances, with the understanding that she will make up the hours earlier in

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the week. ” (Halter Decl. Ex. 38.) The emails concerning Plaintiff’s health insurance costs do
not concern Plaintiff’s religious observance.
Having considered of all the circumstances, and particularly the fact that Plaintiff
was always permitted to adjust her schedule for Sabbath observance and was promoted while she
was on such schedule, the Court concludes that Plaintiff has not sustained her burden of proof of
demonstrating that there is a triable fact as to whether Plaintiff suffered any adverse employment
actions because of religious discrimination. Likewise, the Court concludes that Plaintiff has
proffered facts that would permit a reasonable jury to conclude that Defendant’s reasons were
pretextual or that its conduct was based at least “in part on discrimination,” as required to sustain
a claim under the NYCHRL. Accordingly, Plaintiff’s religious discrimination claims are
dismissed.

B.

Retaliation Claims
1.

Title VII, ADEA, NYSHRL, and NYCHRL Retaliation Claims

Retaliation claims under Title VII, ADEA, and NYSHRL are also analyzed under
the burden shifting McDonnell Douglas framework. Terry v. Ashcroft, 336 F.3d 128, 141 (2d
Cir. 2003); Venezia v. Loxttica Retail N. Am. Inc., No. 13 CV 4467, 2015 WL 5692146, *11
(S.D.N.Y. Sept. 28, 2015). First, a plaintiff must establish a prima facie case of retaliation by
showing “(1) participation in a protected activity; (2) that the defendant knew of the protected
activity; (3) an adverse employment action; and (4) a causal connection between the protected
activity and the adverse employment action.” Jute v. Hamilton Sundstrand Corp., 420 F.3d 166,
173 (2d Cir. 2005) (citation omitted).
“Protected activity,” the first element of the prima facie case, is action taken to

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protest or oppose statutorily prohibited discrimination. Fenner v. News Corp., No. 09 CV 9832,
2013 WL 6244256 (S.D.N.Y. Dec. 2, 2013) (citation omitted). The plaintiff must demonstrate
that she possessed a good faith, reasonable belief that the underlying challenged actions violated
the law when she lodged the complaints. See Sosa v. Local Staff, LLC, 618 F. App’x 19, 19 (2d
Cir. 2015). The objective reasonableness of an employee’s belief that the employer has violated
Title VII must “be measured against existing substantive law” because a failure to do so would
“eviscerate the objective component of our reasonableness inquiry.” Id. at 19-20 (internal
quotation marks and citation omitted). The requirement that the plaintiff’s belief be objectively
reasonable ensures that “a retaliation claim is not a tactical coercive weapon that may be turned
against the employer as a means for the asserted victims to advance their own retaliatory motives
and strategies.” Wolf v. Time Warner, No. 09 CV 6549, 2011 WL 856264, at *8 (S.D.N.Y. Mar.
3, 2011) (internal quotation marks and citation omitted). With respect to the requirement of an
“adverse employment action,” the Second Circuit has held that such an action must be
“materially adverse,” which means that it must be “harmful to the point that [it] 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). This requirement preserves the principle that Title VII
“does not set forth ‘a general civility code for the American workplace.’” Id. (citations omitted).
Under the NYCHRL, Plaintiff must show that Defendant took an employment action that
disadvantaged her in any manner. Venezia, 2015 WL 5692146, at *11
If a plaintiff sustains the prima facie burden, “a presumption of retaliation arises”
and the defendant must then “articulate a legitimate, non-retaliatory reason for the adverse
employment action.” Jute, 420 F.3d at 173 (citation omitted). If the defendant so demonstrates,
the ultimate burden shifts to the Plaintiff to demonstrate that her “protected activity was a but-for

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cause for the alleged adverse action by the employer.” Nassar, 133 S. Ct. at 2534. For an
ADEA claim, Plaintiff needs to show that “retaliatory motive played a part in the adverse
employment action.” Kessler v. Westchester Cnty Dep’t of Social Services, 461 F.3d 199, 205
(2d Cir. 2006).
Under the NYCHRL, Plaintiff must show that she opposed any practice forbidden
under the NYCHRL and that the employer thereafter engaged in some prohibited conduct that
was “caused at least in part by . . . retaliatory motives.” See Chen, 805 F.3d at 76 (citation and
internal quotation marks omitted).
Plaintiff identifies several episodes of allegedly protected activity in connection
with her retaliation claims: (1) her complaint to HR about Petersen’s treatment of her; (2) her
complaint to Aronowitz about the future pay disparity between herself and the Director of
Financial Aid whom ICE intended to hire in January 2012; (3) her complaint to Petersen in or
around October 2012 about her pay differential and her request for a raise; (4) Plaintiff’s
counsel’s letter to Defendant outlining her complaints on February 26, 2013; (5) Plaintiff’s
counsel’s letter to Defendant’s legal counsel outlining her complaints on July 3, 2013; and (6)
her complaint to HR on July 22, 2013, in a meeting called to discuss counsel’s February 26 and
July 3, 2013, letters. (Pl. Br. 28-29).
None of the actions cited by Plaintiff that occurred prior to February 26, 2013 (the
date on which Plaintiff’s counsel sent an initial letter to ICE), constituted protected activity for
the purposes of her retaliation claims. Even assuming that Plaintiff did make complaints
regarding Petersen to HR (an allegation disputed by Defendant), the record shows that those
complaints concerned Petersen raising his hand to Plaintiff in a disrespectful manner, which does
not constitute activity that could be objectively considered discriminatory. See Mi-Kyung Cho

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v. Young Bin Cafe, 42 F. Supp. 3d 495, 507 (S.D.N.Y. 2013) (“[C]omplaining of conduct other
than unlawful discrimination . . . is simply not a protected activity subject to a retaliation claim.”
(internal quotation marks and citation omitted).); see also Venezia, 2015 WL 5692146, at *12.
The record, moreover, demonstrates that Plaintiff did not lodge an actual complaint of any kind
of discrimination until February 26, 2013.
Plaintiff next claims that she complained about the pay disparity between herself
and the new Director of Financial Aid, and in retaliation, ICE denied Plaintiff a pay increase it
had previously intended to give her. (Pl. Opp. at 5.) While the record indicates that Plaintiff at
some point became aware that Tunstall would be receiving a higher salary than she as the
Director of Financial Aid (see Halter Decl. Ex. 28), there is no evidence to support Plaintiff’s
claim that she asked Aronowitz for a raise.4 There is also no evidence that at any point, even
assuming that Plaintiff had asked for a raise, that she complained to Aronowitz about any kind of
discrimination. See Cho, 42 F. Supp. 3d at 507. Furthermore, the record shows that Plaintiff in
fact received a pay raise from $68,900 to $70,622.50 from 2011 to 2012 due to her “promotion”
to Director of Compliance at the end of 2011 as part of the restructuring of the Office. (Halter
Decl. Exs. 25, 64; Def. 56.1 ¶ 111.) The record also shows that Aronowitz had originally
requested a higher raise for Plaintiff, anticipating that the actual amount might be smaller due to
management team considerations. (See Aronowitz Dep. 170-71.) Similarly, Plaintiff did not
engage in any protected activity when she asked for a raise from Petersen, as she did not mention
4

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Although Plaintiff cites to portions of her deposition and two exhibits to support the
assertion that she had asked for a raise from Aronowitz, they do not provide any
such support. (See Pl. Opp. at 11.) The deposition testimony concerns Plaintiff’s
conversations with Petersen, not Aronowitz. One of the exhibits is ICE’s job
posting advertising the Director of Financial Aid position and the other exhibit is an
email chain between Kennedy and Aronowitz, in which they discuss whether
Plaintiff knew of the salary for the new Director of Financial Aid position. (See
Halter Decl. Exs. 26, 28.)
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that she felt discriminated against on the account of her age, gender, religion or medical
condition. (See Yeger Dep. 339-340.) Accordingly, the Court finds that Plaintiff did not engage
in any protected activity prior to February 26, 2013, the date that Plaintiff’s counsel sent the first
letter.
Plaintiff also appears to claim that Petersen’s decision to put her on paid
administrative leave on July 23, 2013, and her termination in October 2013 were retaliatory, in
that they followed Plaintiff’s retention of counsel to send letters complaining of discrimination
on February 26, 2013, and July 3, 2013, and Plaintiff’s complaints in the July 22, 2013, meeting
with HR. (“Post-January 2013 Complaints,” see Pl. Opp. 23.) The Court assumes, without so
deciding, that Plaintiff has met the prima facie requirement of showing that she possessed a good
faith, reasonable belief that the underlying challenged actions violated the law when the letters
were sent.
The Court finds, however, that Plaintiff has not presented evidence to refute
Defendant’s proffer of non-retaliatory motives for the leave and termination. As an initial
matter, despite numerous prior opportunities, the February 2013 letter sent by her counsel was
the first time that Plaintiff articulated complaints of any kind of illegal discrimination, and the
letter was sent shortly after Plaintiff was put on a Performance Improvement Plan in January
2013. As described in more detail in the Court’s discussion of Plaintiff’s discrimination claims,
by July 2013, there had been continuous complaints concerning Plaintiff’s performance by all of
her three supervisors at different points in times (Aronowitz, Petersen, Padilla), including
complaints about her communication skills, unwillingness to see students, and lack of notice of
changes to her schedule. There had been email communication between Petersen and Tunstall in
October 2012, predicting that Plaintiff would not remain employed with Defendant for the long-

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term. (Halter Decl. Exs. 45, 46.) Plaintiff’s re-designation to Director of Compliance from
Director of Financial Aid, alleged to be the first of the adverse actions suffered by Plaintiff,
occurred in late 2011, nearly two years before Plaintiff was put on leave. Even putting aside the
issue of whether critiques of Plaintiff’s job performance were valid, such complaints and the first
of the alleged adverse employment actions occurred many months prior to Plaintiff’s PostJanuary 2013 Complaints, dispelling any inference that the subsequent adverse employment
actions were motivated by retaliation. Slattery v. Swiss Reins. Am. Corp., 248 F.3d 87, 95 (2d
Cir. 2001) (“Where timing is the only basis for a claim of retaliation, and gradual adverse job
actions began well before the plaintiff had ever engaged in any protected activity, an inference of
retaliation does not arise.”). While it is true that temporal proximity can demonstrate a causal
nexus, in this case, the placement of Plaintiff on leave and her ultimate termination were part of
a sustained progression of performance critiques and discussions, as well as re-organization of
Plaintiff’s role—all of which began many months (and even several years) prior to Plaintiff’s
letters being sent. Under these circumstances, Plaintiff has not established pretext or any proper
basis for an inference of retaliation. See Slattery, 248 F.3d at 95 (where adverse employment
actions were both part, and the ultimate product, of “an extensive period of discipline,” which
began five months prior to plaintiff’s EEOC charges, there is no inference of retaliation).
Furthermore, with respect to Plaintiff’s termination, there is no genuine dispute
that, from the time Plaintiff returned from administrative leave in August 2013 to her
termination in October 2013, Plaintiff did not pick up any voicemail messages from her
extension and/or did not take any steps to ensure that she could. As a result, 39 unheard
voicemail messages were on the telephone extension to which Plaintiff was assigned at the time
of her termination. Based on these circumstances, Plaintiff has not met her burden of

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demonstrating there could be a rational inference by a factfinder that Plaintiff’s letters were butfor reasons for Plaintiff’s leave and termination. Likewise, Plaintiff has not demonstrated that a
rational factfinder could conclude that ICE’s stated reasons were pretextual or that ICE’s
conduct was based at least “in part on discrimination” for purposes of her NYCHRL claim. See
Chen, 805 F.3d at 76.
Accordingly, Plaintiff’s retaliation claims under Title VII, ADEA, the NYSHRL,
and the NYCHRL are dismissed.

2.

FMLA Retaliation Claim5

In an FMLA retaliation claim, “an employee asserts that his employer
discriminated against him because he engaged in activity protected by the Act.” Smith v.
Westchester Cty., 769 F. Supp. 2d 448, 469 (S.D.N.Y. 2011) (internal quotation marks and
citation omitted). FMLA retaliation claims are analyzed under the burden-shifting framework of
McDonnell Douglas. Potenza v. City of New York, 365 F.3d 165, 168 (2d Cir. 2004). In order
to make out a prima facie case of retaliation under the FMLA, a plaintiff must establish that “(1)
he exercised rights protected under the FMLA; (2) he was qualified for his position; (3) he
5

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Although Plaintiff’s Amended Complaint also asserts an FMLA “discrimination”
claim, which is more appropriately characterized as an interference claim, Plaintiff’s
allegations are entirely based on actions taken after Plaintiff had already taken
FMLA leave and she does not dispute that she was permitted to take leave.
Accordingly, the Court will only address Plaintiff’s FMLA retaliation claim. See
Smith v. Westchester Cnty, 769 F. Supp. 2d 448, 463 (S.D.N.Y. 2011) (Second
Circuit has recognized two types of FMLA claims, interference and retaliation
claims (citing Potenza v. City of New York, 365 F.3d 165, 168 (2d Cir. 2004)). The
Court also notes, without deciding whether such claims could even be viable, that
Plaintiff’s Amended Complaint does not assert retaliation claims based on
Plaintiff’s taking of FMLA leave under New York State or City law, in that her state
and local law retaliation claims cite only her complaints concerning discrimination
to Defendant and the EEOC, and do not refer to medical leave. (Am. Compl. ¶¶
175-88.)
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suffered an adverse employment action; and (4) the adverse employment action occurred under
circumstances giving rise to an inference of retaliatory intent.” Potenza, 365 F.3d at 168. Once
that showing is made, “the burden of production then shifts to the employer to ‘articulate a
legitimate, clear, specific and non-discriminatory reason’ for its actions.” Esser v. Rainbow
Adver. Sales Corp., 448 F. Supp. 2d 574, 581 (S.D.N.Y. 2006) (citation omitted). As to the third
step, the Second Circuit has stated that Plaintiff must adduce evidence demonstrating that the
taking of FMLA leave was “a negative factor” in the decision to implement the adverse
employment action. See Sista v. CDC Ixis N. Amer., Inc., 445 F.3d 161, 176 (2d Cir. 2006); see
also Di Giovanna v. Beth Israel Medical Center, 651 F. Supp. 2d 193, 205 (S.D.N.Y. 2009)
(plaintiff need not show that defendant’s proffered reasons played no role, “but only that they
were not the only reasons, and that filing for FMLA leave was at least one motivating factor.”)
This requires putting forth evidence from which a reasonable factfinder could conclude that the
employer’s explanation was “merely pretext masking impermissible retaliatory motives.” See
Sista, 651 F. Supp. at 205 (citation omitted). To determine whether summary judgment is
warranted in a particular case, courts evaluate “the strength of the plaintiff’s prima facie case, the
probative value of the proof that the employer’s explanation is false, and any other evidence that
supports [or undermines] the employer’s case.” Di Giovanna, 651 F. Supp. 2d at 205 (internal
quotation marks and citations omitted, alteration in original). “FMLA is not a shield to protect
employees from legitimate disciplinary action by their employers if their performance is lacking
in some manner unrelated to their FMLA leave.” Geromanos v. Columbia Univ., 322 F. Supp.
2d 420, 429 (S.D.N.Y. 2004).
Under the FMLA, “[a]n action may be brought . . . not later than 2 years after the
date of the last event constituting the alleged violation for which the action is brought.” 29

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U.S.C. § 2617(c)(1). The limitations period extends to three years for willful FMLA violations.
See id. § 2617(c)(2). An FMLA violation is willful if an employer either knew or recklessly
disregarded whether its conduct violated the FMLA. See Porter v. N.Y. Univ. Sch. of Law, 392
F.3d 530, 531-32 (2d Cir. 2004). If an employer acted reasonably, or unreasonably but not
recklessly in determining whether its actions were illegal, the alleged violations should not be
considered willful. Id. The statute of limitations runs from the time each actionable violation of
the FMLA occurs. See Barrett v. Illinois Dep’t of Corrections, 803 F.3d 893, 896-97 (7th Cir.
2015).
Here, if the two-year statute of limitations applies, Plaintiff is barred from
bringing any claims pertaining to alleged FMLA violations prior to October 14, 2012. Of
relevance, this would exclude any claims pertaining to Aronowitz’ decision to restructure the
Office and the re-designation of Plaintiff to the Director of Compliance & Reporting position,
which had occurred by April 2012. Plaintiff has not disputed that the two-year statute of
limitations should apply in this case, nor has she adduced any evidence demonstrating that any
decisions made by Defendant recklessly violated her FMLA rights. It is undisputed that
Defendant permitted Plaintiff to take leave and subsequently permitted her to modify her
schedule in order to attend to her physical therapy needs. Although, as will be discussed, there is
some evidence suggesting that Defendant may have taken Plaintiff’s irregular schedule into
account when making its later employment decisions, this does not amount to recklessness.
Accordingly, the Court finds that the two-year statute of limitations applies with respect to
Plaintiff’s FMLA claims. Any alleged violations prior to October 14, 2012, or two years prior to
when the instant lawsuit was filed, are barred by the statute of limitations. The Court notes,
however, that it is not precluded from considering the events prior to October 14, 2012, as

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evidence in the context of remaining viable claims.
With respect to the remainder of Plaintiff’s FMLA claims, Plaintiff submits that
that she suffered the July 23, 2013, decision by Petersen to put Plaintiff on paid administrative
leave and the October 15, 2013, termination, in retaliation for her taking FMLA leave. Plaintiff
has made a prima facie showing that she exercised her rights under the FMLA, she was qualified
for her position, and that she suffered adverse employment actions. Plaintiff has also pointed to
circumstances giving rise to an inference of retaliatory intent for purposes of her minimal burden
at prima facie stage. With respect to the second step, as discussed in detail above, Defendant has
articulated a non-retaliatory reason for putting Plaintiff on paid leave and for terminating her.
More specifically, ICE has proffered evidence demonstrating a pattern of deficient performance
by Plaintiff, principally that she shirked responsibilities in meeting with students, failed to keep
supervisors apprised of changes in her schedule, and failed to check her voicemail for two
months prior to her termination.
Under the third step of the analysis, Plaintiff must adduce admissible evidence
that would permit a reasonable jury to find that the adverse employment actions were motivated
at least in part by Plaintiff having taken intermittent leave under the FMLA. Here, in contrast to
Plaintiff’s other claims, the Court finds that Plaintiff has adduced sufficient evidence to permit a
reasonable jury to find that Plaintiff’s FMLA leave was at least one motivating factor in
Defendant placing Plaintiff on leave and her ultimate termination. The Court will discuss the
key facts below.
Plaintiff was first hired in February 2008, then promoted to Director of Financial
Aid in September 2009. Plaintiff suffered her work-related injury in October 2009, took two
periods of leave in 2010 and 2012, and received physical therapy two to three times per week

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beginning around March 2010. As of January 2011, Plaintiff was leaving work twice weekly to
attend physical therapy sessions and worked from home on Fridays. Around October 2011,
Plaintiff’s job was split; Plaintiff was thereafter redesignated to Director of Compliance and
Tunstall was hired as Director of Financial Aid. Although it is undisputed that Plaintiff’s
scheduling needs were accommodated, it was around 2011 when, Aronowitz testified, he began
discerning problems related to the lack of time Plaintiff spent in the Office, which can be
reasonably inferred to stem from Plaintiff’s need to attend physical therapy.
Defendant proffers evidence that Plaintiff was not keeping her Office apprised of
changes in her schedule, but Plaintiff has pointed to at least a handful of emails in which she did
provide such notice. There is further evidence that Plaintiff’s schedule changes stemming from
her physical therapy were of concern to Defendant. Plaintiff’s 2011 performance evaluation,
appears to have alluded to the absences: “[d]espite Debby’s unusual schedule (that Management
hopes will return to normal soon), she was frequently observed by her Manager working late,
coming in on days off, checking in on vacation and FedEx’ing files home to review.” (Baken
Decl. Ex. 17.) In May 2012, Aronowitz emailed Kennedy, stating, inter alia, “[w]hen [Plaintiff]
settles down . . . need you to broach the subject with her on her schedule returning to normal.
She puts in a lot of hours and I can say she gets her job done, but I want them to start
overlapping with office staff, notably Vince . . . .” (Halter Decl. Ex. 38.)
Aronowitz testified that he experienced “face time” issues with Plaintiff around
October 2012 that were attributable to Plaintiff’s need to attend therapy and that was one of the
reasons Tunstall was hired. (See Aronowitz Dep. 241.) Around the same time, Tunstall wrote to
Petersen that “Debby is a wild card in the office with her days off and arrangements made prior
to my arrival. She does have some value for Ice rt now but I don’t think she is in the long term

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(2yrs and out) picture at ICE.” (Pl. Resp. 56.1 ¶ 8; Halter Decl. Ex. 45.) In a subsequent,
separate email, Petersen wrote that “Vin [Tunstall] had been shopping for a back up to replace
Debby as we are both less than confident that she will work out within the next 3 - 6 months.”
(Halter Ex. 46.) There is also a November 2012 email chain in which Kennedy discussed with
another HR employee the potential high cost of Plaintiff’s medical insurance expenses for ICE.
(Halter Decl. Ex. 52.)
Plaintiff was placed on administrative leave in July 2013, reinstated in August
2013, and terminated in October 2013. As described elsewhere in this opinion, it cannot be
denied that Defendant’s complaints about Plaintiff’s performance spanned a significant period of
time and the tenures of different managers, and that she in fact failed to check her voicemail
messages for the two months leading up to her termination. However, given that Plaintiff only
needs to proffer sufficient evidence to permit a reasonable inference that retaliation for the
medical absences was “at least one motivating factor,” in consideration of the issues that were
raised concerning her medical schedule and expenses and drawing all inferences in her favor,
Plaintiff has sustained that burden at the summary judgment stage. Accordingly, Defendant’s
motion to for summary judgment is denied as to the FMLA retaliation claim insofar as it is based
on adverse employment events after October 2012. Defendant’s motion for summary judgment
as to the FMLA retaliation claim is granted in all other respects.
Finally, Defendant has moved for summary judgment on Plaintiff’s punitive
damages claims to the extent that its motion is denied in any respect. The only remaining claim
is Plaintiff’s FMLA retaliation claim, under which punitive damages are not available. See
Cooper v. New York State Nurses Ass’n, 847 F. Supp. 2d 437, 452 (E.D.N.Y. 2012); Vicioso v.
Pisa Bros., Inc., No. 98 CV 2027, 1998 WL 355415, at *4 (S.D.N.Y. Jul. 1, 1998). Accordingly,

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Defendant’s motion with respect to Plaintiff’s claim for punitive damages is granted.

CONCLUSION
Plaintiff’s motion to strike is granted. Defendant’s motion for summary judgment
is denied as to the aspect of Plaintiff’s FMLA retaliation claim that arises from adverse
employment actions that occurred after October 14, 2012, and is granted in all other respects.
The final pre-trial conference is scheduled for March 17, 2017 at 3:00 p.m. The parties must
promptly meet to discuss settlement, and must confer and make pre-conference submissions in
accordance with the Pre-Trial Scheduling Order (docket entry no. 17).
This Memorandum Opinion and Order resolves docket entry numbers 27 and 55.

SO ORDERED.
Dated: New York, New York
January 25, 2017
/s/ Laura Taylor Swain
LAURA TAYLOR SWAIN
United States District Judge

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