McPartlan-Hurson v. Westchester Community College et al

Filing 153

OPINION AND ORDER: re: 141 MOTION for Summary Judgment filed by Westchester County, Westchester Community College. For the foregoing reasons, Defendants' Motion is GRANTED in part and DENIED in part. Summary judgment is granted in Defend ants' favor on the claims of race and disability discrimination under Title VII and the ADA. Nevertheless, Plaintiff has raised genuine issues of material fact as to whether her termination is attributable to retaliatory motives. The Clerk of th e Court is respectfully requested to terminate the motion a ECF No. 141. The patties are directed to appear this honorable Court on July 13, 2018 at 11:30 a.m. for a pretrial conference. SO ORDERED., ( Pretrial Conference set for 7/13/2018 at 11:30 AM before Judge Nelson Stephen Roman.) (Signed by Judge Nelson Stephen Roman on 6/21/2018) (ama)

FACTUAL BACKGROUND 1
Plaintiff, Mary McPartlan-Hurson, a Caucasian, disabled 2 woman, was hired as an adjunct
professor in the English Department at WCC in 2004. (See Plf. Resp. ¶1.) Her position as an
adjunct was terminated in December of 2009, after being denied a diversity fellowship for the Fall
2009 semester and reapplying for the fellowship again in October 2009 for the Spring 2010
semester. (Id. ¶95.)
I.

The Charges Before the EEOC
On July 19, 2010, Plaintiff filed her first charge with the Equal Employment Opportunity

Commission (“EEOC”) for disability discrimination and retaliation in violation of Title VII and
the ADA (the “Initial Charge”). (Defs. 56.1, Ex. AA.) In support of her Initial Charge, Plaintiff
completed an EEOC Intake Questionnaire in which she complained that she was discriminated
against when she was denied a diversity fellowship by WCC, which was instead awarded to
recipients that were African American and not disabled. (See Sapri Decl., Ex. 37.) Plaintiff filed
a second charge with the EEOC on March 25, 2011 to explicitly include a claim for racial
discrimination, in addition to her disability discrimination and retaliation claims (the “Second
Charge”). (See Plf. Resp. ¶96; Defs. 56.1, Ex. BB.) Plaintiff’s Second Charge was entitled an
“Amended Charge”and given the same charge number as the Initial Charge. (Compare Defs. 56.1,
Ex. AA with Ex. BB.) On July 20, 2012, the EEOC issued a determination and a finding of

1

The facts are drawn from the Defendants’ Rule 56.1 Statement of Undisputed Material Facts (“Defs. 56.1”) (ECF
No. 151), Plaintiff’s Rule 56.1 Statement of Undisputed Material Facts (“Plf. Resp.”) (ECF No. 144), Defendants’
Counter Response to Plaintiff’s 56.1 Statement (“Defs. Cntr.”) (ECF No. 152), and the exhibits attached thereto. They
are undisputed except where indicated. Any citations made to documents and testimony provided by Plaintiff will be
to those exhibits attached to the Declaration of Donald L. Sapir in Opposition to Defendants’ Motion (“Sapir Decl.”)
(ECF No. 145). References made to documents provided by Defendants will be to the exhibits as attached to their
Rule 56.1 Statement.
2
There appears to be no dispute that Plaintiff is disabled, so the Court need not discuss the specifics of her disability.

2

probable cause (the “July 20th Determination”) that Defendants had discriminated against her on
the basis of race but not disability. (See Sapir Decl., Ex. 39.)
Prior to issuing its July 20th Determination, the EEOC requested that Defendants provide
evidence supporting their reasons for denying Plaintiff the diversity fellowship and terminating
her. (Id.) Defendants provided no such documents. (Id.)
II.

Plaintiff’s Employ at WCC
Plaintiff was an adjunct for WCC for approximately 11 semesters. During her employ,

Plaintiff taught two-to-three classes per semester in the English Department. (See Plf. Resp. ¶¶2,
5, 15; Defs. Cntr. ¶144.) In the Spring of 2006, Plaintiff applied for a full-time position. (See
Defs. 56.1, Ex. A, at 60.) She enlisted the help of Maryanne Vent, the English Department’s
Adjunct Coordinator (“Vent”), to assist in her application. Vent supported Plaintiff’s candidacy
by writing a letter of recommendation (the “2006 Recommendation”). (Sapir Decl., Ex. 13.)
Ultimately, Plaintiff was not chosen for a full-time position. (See Plf. Resp. ¶8.) In 2007, Plaintiff
again applied for a full-time position, but her application was denied. (See Plf. Resp. ¶9.)
During the Spring 2008 semester, Michael Downie, a male African American English
professor, was denied tenure and terminated. (See Defs. Cntr. 1.) After his termination, Mr.
Downie initiated a Title VII lawsuit against the school alleging that he was terminated due to race
discrimination. (Id. ¶106.) Ultimately, the case was resolved by way of a settlement, (see Plf.
Resp. ¶21), but there remained tension and unrest on campus, (Defs. Cntr. ¶109.) In the wake of
Mr. Downie’s firing and resulting lawsuit, the teachers in the English Department were fighting
over whether his termination was merit-based or racially motivated. (See Defs. Cntr. ¶110.)
In approximately Spring of 2008, shortly after Mr. Downie was denied tenure, Cynthia
Robinson, an African American English adjunct, was hired for a full-time position. (Defs. Cntr.

3

¶102.) To promote her to this position, a “special line” was created by Frank Madden, Chairman
of the English Department and Joseph Hankin, WCC’s president, whereby she was hired outside
“the usual channels” as an “affirmative action hire.” (Id.) Upon learning this information,
Plaintiff, who had a cordial relationship with Vent insofar as they would speak over the telephone
outside of work, (see Sapir Decl., Ex. 2 at 46-47; Defs. 56.1, Ex. 5), testified that she called Vent
to relay her happiness that WCC was “doing the right thing” by promoting an adjunct to a full time
position, (see Sapir Decl., Ex. 1 at 116.) During that conversation, Plaintiff contends she asked
why Robinson was promoted when she was not and Vent replied that “she’s got something you
don’t have . . . . she’s black.” (Id. at 116-17; see also Plf. Resp. ¶34.) Defendants contend that
this conversation happened in the inverse; that Plaintiff claimed Robinson had only been promoted
“because she was black.” (Defs. Cntr. ¶103, Ex. G at 59.)
In an effort to increase diversity among the faculty, WCC administrators created the Dr.
Julius Ford Teaching Fellowship Program (the “Fellowship”) in 2009. (See Plf. Resp. ¶¶49-50.)
The Fellowship was available to diverse adjunct professors who were interested in obtaining fulltime positions at the school, (id. ¶¶50-51; Defs. Cntr. ¶114), and was “designed to assist
individuals, in particular from underrepresented groups,” (see Sapir Decl., Ex. 19.)
On January 23, 2009, Plaintiff contacted Vent to discuss her interest in applying for the
Fellowship. 3 (Defs. 56.1, Ex. K.) In response, Vent noted her interest in Plaintiff’s application
and becoming involved in the committee. (Id.) In January of 2009, Plaintiff submitted an
application for the Fall ‘09 Fellowship and Vent authorized Plaintiff to use the 2006

3

Plaintiff also contends that she spoke with Vent about the Fellowship over the phone and Vent told Plaintiff that she
would only be considered if all of her “freckles have melded since [she] saw [Plaintiff] last.” (Defs. Cntr. ¶119.)
Defendants dispute that Vent ever made such comments and contest the admissibility of such testimony. (Id.) As
explained in further detail below, in light of Plaintiff’s inability to file her EEOC charges within 300 days of her nonreceipt of her Fellowship, the Court may only consider evidence relevant to such denial as background information.
Thus, the dispute between Plaintiff and Defendants’ versions of what was said in this conversation is not material.

4

Recommendation in support thereof. (See Sapir Decl., Ex. 1 at 237, 274; Ex. 2 at 192-93; Ex. 21.)
In March of 2009, Plaintiff was interviewed as part of the application process. (Defs. Cntr. ¶122.)
The Co-directors of the Fellowship, Melissa Acevedo (“Acevedo”) and Donald Whitely
(“Whitely”) believed Plaintiff’s application to be strong. (Id. ¶123.)
On April 8, 2009, Acevedo emailed certain division heads and department chairs regarding
candidates for the Fall ‘09 Fellowship. (Plf. 56.1 ¶57; Defs. Cntr. ¶120.) Her email detailed a list
of five adjunct professors who were being recommended as fellows including two adjuncts from
the English Department, one of whom was Plaintiff. (Plf. 56.1 ¶58; see also Sapir Decl., Ex. 22.)
Acevedo asked the department chairs and division heads to comment on the adjuncts’ candidacies,
in particular “whether or not [they felt] that the candidate should be selected to participate in the
program.” (Plf. 56.1 ¶57; see also Sapir Decl., Ex. 22.) Jianping Wang 4 forwarded Acevedo’s
request to the following members of the English Department, asking for their input: Madden,
Heather Ostman (Assistant Chair), and Vent. (Id.)
Vent and Ostman responded to the requests for comment the very same day. (Plf. 56.1
¶¶59-61.) Madden did not provide his comments on the subject. (Id. ¶62; Defs. Cntr. 124.) Vent’s
response recommended Plaintiff for the Fellowship, by noting that Plaintiff was an effective
teacher of basic writing and:
provides students with structure, basic skills, and a great deal of practice
writing. This means a great deal of work for her, but she does what is best
for students. As a disable person, she is a good role model for her classes.
That fact, along with her work ethic, makes her a strong candidate for the
fellowship.

4

Jianping Wang is the Associate Dean of Academic Affairs for Arts and Humanities.

5

(Sapir Decl., Ex. 23.) Ostman, on the other hand, equivocated on Plaintiff’s candidacy. (Plf. 56.1
¶¶60-61.) Specifically, Ostman wrote, “I think there are reasons to support [Plaintiff] and reasons
not to support her.” (See Sapir Decl., Ex. 24.) She continued:
[o]n the one hand, she is very present to the college and very much wants
to work here. On the other, my communication with her suggests she may
be one of the most unforgiving teachers I have ever met. She often suggests
that our students are quite incapable, an attitude that can often create a selffulfilling prophecy in the classroom. Since the Fellowship program’s intent
is to prepare their fellows for possible full time employment, I have
reservations about [Plaintiff]. On the other hand, she may well benefit from
a mentor.
(Id.) Though Madden did not respond to Wang’s email for comment, he testified that he initially
agreed with Vent. (See Defs. Cntr. ¶124, Ex. II at 230-31.) His opinion on the subject later
changed as he, Vent, and Ostman met to discuss Plaintiff in “a very evaluative way.” (Id.)
On April 9, 2009, Acevedo sent another email to members of the Fellowship Committee;
Chet Rogalski (former Vice President and Dean of Academic affairs), Whitely, and Vernon Huff. 5
(See Defs. 56.1, Ex. N.) The email listed five fellows “that ha[d] received departmental approval”
for the Fall ‘09 Fellowship; Plaintiff was no longer on the list, 6 (id.), and was not selected to receive
the Fall ‘09 Fellowship, (Plf. Resp. ¶67; Defs. 56.1, Ex. R.)
Plaintiff received her rejection in May of 2009. (Sapir Decl., Ex. 1 at 254-55.) Shortly
thereafter, she was walking to Ostman’s office to discuss a grade change for one of her students
and ran into Whitely. (Id.) She testified that Whitely informed her that she had actually been
chosen for the Fall ‘09 Fellowship but that her “department or the administration had pulled [her]
name.” (Id.) Plaintiff then went to Ostman’s office and relayed her conversation with Whitely,

5

Neither party identified Mr. Huff’s position at WCC outside of identifying him as a Fellowship committee member.
Plaintiff was not the only person removed from Acevedo’s April 8, 2009 list. Two other candidates that were listed
in Acevedo’s April 8, 2009 email were replaced with two new candidates in the April 9, 2009 email. (Compare Sapir
Decl., Ex. 22 with Defs. 56.1, Ex. N.)
6

6

and Ostman said that all she knew was that Wang had asked her to recommend “two people of
color . . . for the fellowship.” (Id. at 254.) Plaintiff contends that this caused her to reassess the
reason she was rejected for the Fellowship. (Id. at 254-55.) 7
After obtaining this information from Ostman, Plaintiff called Vent and relayed her
conversations with Whitely and Ostman. (Defs. Cntr. ¶169.) During that conversation, Plaintiff
complained to Vent that she believed she was denied the Fall ‘09 Fellowship because she was
disabled and not a person of color. (Id.; Sapir Decl., Ex. 1 at 316.) When asked whether she
recalled Plaintiff having that conversation with her, Vent stated that it “sounds like something
[Plaintiff] might have said, but I don’t recall that.” (See Sapir Decl., Ex. 2 at 312.)
Though she did not receive the Fall ‘09 Fellowship, Plaintiff applied for the Spring 2010
Fellowship. (Defs. Cntr. ¶¶131-32.) To be considered for the Spring ‘10 Fellowship, candidates
had to have departmental approval and be scheduled to teach in the Spring. (Defs. Cntr. ¶128.)
On October 29, 2009, Plaintiff emailed Vent, Madden, and Ostman informing them that she had
left a copy of her Spring ‘10 application at each of their offices and requested that they give her
department approval for the Fellowship. (See Sapir Decl., Ex. 30.) Ostman then removed Plaintiff
from the email chain and wrote directly to Vent and Madden suggesting that they “talk about this
together before” responding. (Id.) In response, Vent wrote “I don’t want to sabotage her
application, but I’m getting a little tired of this after hearing her story over and over.” (Id.)

7

Defendants contest that these conversations with Ostman or Whitely ever happened, because both Ostman and
Whitely testified that they were unable to recollect such conversations. (See Defs. Cntr. ¶¶168-69.) Such a dispute is
not material. Moreover, the Court is permitted to consider the statements allegedly made by Whitely and Ostman, as
the statements are party-opponent admissions and thus admissible under Federal Rule of Evidence 801(d)(2)(D).
Walsh v. N.Y.C. Hous. Auth., 828 F.3d 70, 79 (2d Cir. 2016). It is uncontested that Ostman and Whitely were
employees of WCC at the time they made the statements, and the statements clearly related to “a matter within the
scope of the agency”, as they pertained to Plaintiff’s candidacy for a fellowship established by the school, of which
Whitely was a committee member, and on which Ostman’s input was elicited. See id. (admitting statements of
NYCHA employee because the statements were made by a declarant that was “an advisory or other significant
participant in the decision-making process that is the subject matter of the statement”).

7

III.

Plaintiff’s Termination and the Reasoning Therefor
Vent, Madden, and Ostman all testified that the decision to fire Plaintiff resulted from a

series of student and colleague complaints that they discussed in a meeting during the Fall 2009
semester. (See Plf. Resp. ¶75; see also Sapir Decl., Ex. 2 at 103.)
According to Vent, during the Spring 2009 semester, Plaintiff was not an effective teacher
of basic writing and did not do what was best for her students. (See Plf. Resp. ¶¶79-80.) 8
Moreover, Vent claimed that she had heard multiple student complaints regarding Plaintiff’s
personality and behavior, though she admitted that she had never received such complaints
personally; they were all received by Madden and relayed to her. (See Sapir Decl., Ex. 2 at 94,
134.) These complaints had been ongoing “every semester for three or four semesters” prior to
their decision not to rehire Plaintiff. (Id. at 134.) Though Vent originally found Plaintiff to be
“congenial and pleasant,” by the time she made the decision to terminate her, she “found her to be
more abrasive . . . harping on who got a job, who didn’t; harping on conspiracies about who’s
trying to keep her from getting this fellowship.” (Id. at 212; Defs. Cntr. ¶170.)
Madden testified specifically about two student complaints that he had received. (See Sapir
Decl., Ex. 3 at 36.) The remaining complaints were general and received from third parties. (Id.)
Madden also testified that whenever he received student complaints, he followed a regimented
approach to resolving them, the first step of which was to ask the students to address their concerns
with the professor directly. (See id. at 15-18.) If the particular student did not return to complain
further, he considered the dispute resolved. (Id. at 16.) In both instances where students
complained about Plaintiff, Madden could not recall writing to her regarding the complaints (id.

8

Defendants cite to page 274 of Vent’s deposition as support for these statements. (See Plf. Resp. ¶¶79-80.) Though
neither party has provided the Court with this page of Vent’s deposition, the Court may still consider it, as Plaintiff
has not disputed that Vent did in fact testify as such. (Id.)

8

at 19-20), and assumed the disputes were resolved when he had not heard from the students again
after sending them to speak with Plaintiff directly, (id. at 30, 33.) Despite Vent’s testimony to the
contrary, Madden testified that Vent had discussed student complaints with him that she had
personally received. (Id. at 37.)
Ostman testified that she had received complaints that Plaintiff was excessively talkative,
though she admitted that she had never witnessed such behavior for herself. (Plf. Resp. ¶¶22-23.)
She also claimed not to be surprised when she heard about student complaints because she knew
Plaintiff to be abrasive, though she “sort or assumed it[ was] . . . a Bronx thing.” (See Sapir Decl.,
Ex. 4 at 30.) Ostman further testified that Madden expressed reluctance to rehiring Plaintiff for
the Spring 2010 semester because her performance was a “problem that [they] were trying to head
off” insofar as she had a number of “little things”, such as her personality and student complaints,
that became difficult. (Id. at 62, 65.)
Toward the end of 2009, Vent, Ostman, and Madden had a meeting to discuss whether to
rehire Plaintiff for the Spring 2010 semester, in light of the above referenced student and colleague
complaints. (Plf. Resp. ¶¶ 75-80.) Following that meeting, Vent made a decision to terminate
Plaintiff which resulted from a “history of problems”, (see Defs. 56.1, Ex. X), ultimately leading
Vent to the conclusion that Plaintiff “was just too much of a liability and [she] made the final
decision not to rehire her,” (see Defs. Br. at 3 n.2; Plf. Resp. ¶¶75-82.) In December of 2009, this
decision was communicated to Plaintiff. (Defs. Cntr. ¶135; Plf. Resp. ¶84.) Specifically, Plaintiff
received a call from Vent on December 17, 2009 informing her that WCC had no classes for her
to teach in the Spring of 2010. (Defs. Cntr. ¶135.) 9 On December 19, 2009, Plaintiff sent an email

9

Defendants dispute Plaintiff’s contention that she was informed of her termination by Vent on December 17, 2009,
(see Defs. Cntr. ¶135), but then use Plaintiff’s email to Whitely recounting this conversation in an effort to argue that
Plaintiff was fired on December 17, 2009, (see Defs. Br. at 8.) Defendants’ objection to this testimony is baseless;
Plaintiff’s version is uncontested, Defendants cite to Plaintiff’s own statements to argue that she was fired on

9

to Whitely stating that she had “received [her] answer . . . [regarding her Spring ‘10 application]
in the form of a phone call . . . informing [her] that not only was [she] not getting the Fellowship
but [she] was, in fact, fired.” 10 (Defs. 56.1, Ex. U.)
Despite having already been informed that she would not be rehired for the Spring 2010
semester, Plaintiff contacted Wang to inquire into the status of her Spring ‘10 Fellowship
application. (See Defs. 56.1, Ex. V.) Also included on this email were Acevedo, Rogalski, Vent,
Ostman, Madden, Whitely, and Hankin. (Id.) Thereafter, Rogalski contacted Vent, Madden, and
Ostman to ascertain whether they intended to rehire Plaintiff for the Spring 2010 semester, so the
Fellowship committee could consider her application. (See Defs. 56.1, Ex. X.) Madden responded
on December 21, 2009 by informing Rogalski that Plaintiff had a history of problems, was
“hostile”, and that the English department had “believed it best to cut [its] ties now.” (Id.) Vent
agreed that Madden’s description of Plaintiff was accurate. (See Defs. 56.1, Ex. X.)
Defendants now argue that no material facts exist on any of Plaintiff’s claims, warranting
summary judgment in their favor on each cause of action.
LEGAL STANDARD
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment is
appropriate “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). The moving party bears
the initial burden of pointing to evidence in the record, “including depositions,
documents . . . [and] affidavits or declarations,” see Fed. R. Civ. P. 56(c)(1)(A), “which it believes

December 17, 2009, and Defendants otherwise provide no alternate explanation demonstrating who informed Plaintiff
of her termination or how it was communicated to her.
10
Plaintiff repeatedly contends that Vent informed her that the decision not to rehire her was not final, (see e.g. Plf.
Br. at 17), despite sending the December 19, 2009 email explicitly stating that she was fired. This is not material, as
Plaintiff ultimately agrees that she was terminated in December of 2009.

10

demonstrate[s] the absence of a genuine issue of material fact,” Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). The moving party may support an assertion that there is no genuine dispute of a
particular fact by “showing . . . that [the] adverse party cannot produce admissible evidence to
support the fact.” Fed. R. Civ. P. 56(c)(1)(B). If the moving party fulfills its preliminary burden,
the onus shifts to the nonmoving party to raise the existence of a genuine issue of material fact.
Fed. R. Civ. P. 56(c)(1)(A); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
A genuine dispute of material fact exists when “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248; accord Gen. Star
Nat’l Ins. Co. v. Universal Fabricators, Inc., 585 F.3d 662, 669 (2d Cir. 2009); Roe v. City of
Waterbury, 542 F.3d 31, 35 (2d Cir. 2008); Benn v. Kissane, 510 F. App’x 34, 36 (2d Cir. 2013)
(summary order). Courts must “draw all rational inferences in the non-movant’s favor,” while
reviewing the record. Kirkland v. Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Importantly, “the judge’s function is
not himself to weigh the evidence and determine the truth of the matter,” nor is it to determine a
witness’s credibility. Anderson, 477 U.S. at 249; see also Kaytor v. Elec. Boat Corp., 609 F.3d
537, 545 (2d Cir. 2010). Rather, “the inquiry performed is the threshold inquiry of determining
whether there is the need for a trial.” Anderson, 477 U.S. at 250. Summary judgment should be
granted when a party “fails to make a showing sufficient to establish the existence of an element
essential to that party’s case.” Celotex, 477 U.S. at 322.
Critically, in an opposition to a motion for summary judgment “[s]tatements that are devoid
of any specifics, but replete with conclusions” will not suffice. Bickerstaff v. Vassar Coll., 196
F.3d 435, 452 (2d Cir. 1999); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586 (1986) (nonmoving party “must do more than simply show that there is some

11

metaphysical doubt as to the material facts”); FDIC v. Great Am. Ins. Co., 607 F.3d 288, 292 (2d
Cir. 2010) (nonmoving party “may not rely on conclusory allegations or unsubstantiated
speculation” (quoting Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998))).
DISCUSSION
I.

Title VII Exhaustion
Defendants first argue that Plaintiff failed to timely exhaust her claims. (See Defendants’

Brief in Support of the Motion for Summary Judgment (“Defs. Br.”) (ECF No. 143), at 8-9.) In
Opposition, Plaintiff argues that her second charge relates back to the one filed within the 300-day
limitations period, and that the two are reasonably related. (See Plaintiff’s Br. in Opposition to
Defendants’ Motion (“Plf. Br.”) (ECF No. 146), at 4-9.)
Title VII requires plaintiffs to first exhaust their administrative remedies before filing suit
in federal court. See 42 U.S.C. § 2000e-5(f)(3). Exhaustion demands timely filing of charges with
the EEOC and obtainment of a notice of right to sue. Id.; see also Williams v. N.Y. Hous. Auth.,
458 F.3d 67, 69-70 (2d Cir. 2006). Claims are timely filed with the EEOC if they are brought
within 180 or 300 days of an alleged unlawful practice. See 42 U.S.C. § 2000e-5(e)(1); see also
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002). In states like New York that
have their own equal employment agency, the time period is 300 days. Nat’l R.R. Passenger
Corp., 536 U.S. at109; Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 712 (2d Cir. 1996).
It is 180 in all others. Nat’l R.R. Passenger Corp., 536 U.S. at 109; Pearson v. Bd. of Ed., 499
F. Supp. 2d 575, 590 (S.D.N.Y. 2007). Title VII exhaustion has been analogized by courts to
statutes of limitations, and are thus not considered unwaivable jurisdictional prerequisites. See
Hardaway v. Hartford Pub. Works Dep’t, 897 F.3d 486, 489 (2d Cir. 2018).

12

Plaintiff filed two charges with the EEOC. Her Initial Charge was filed on July 19, 2010
and the Second Charge on March 25, 2011. (Defs. 56.1, Exs. AA, BB.) Both Charges allege two
distinct adverse employment actions: Plaintiff’s non-receipt of the Fall ‘09 Fellowship and her
December 2009 termination, though both identify only one date of discrimination – December 17,
2009. (See id., Exs. AA, BB; see also Sapir Decl., Ex. 37.) The Court reviews each in turn.
A.

Claims Arising From the Denial of the Fellowship for Fall 2009

Plaintiff makes no effort to refute Defendants’ argument that claims arising from the Fall
‘09 Fellowship are untimely. Though unopposed, the Court will considered the merits in brief.
Plaintiff’s Initial Charge was filed over 300 days after she received notice that she was
denied the Fall ‘09 Fellowship; a claim on that basis cannot survive. To be timely, an EEOC
charge must be filed within 300-days of the alleged unlawful practice, see 42 U.S.C. § 2000e5(e)(1); see also Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002), 11 which was
triggered from the date on which Plaintiff was rejected for the Fellowship. Nat’l R.R. Passenger
Corp., 536 U.S. at 113; Vega v. Hempstead Union Free School Dist., 801 F.3d 72, 79 (2d Cir.
2015); Pearson v. Bd. of Educ., 499 F. Supp. 2d 575, 590 (S.D.N.Y. 2007). Moreover, the Court
counts back from the date of the EEOC filing to ascertain what claims are timely and must dismiss
all claims related to conduct that occurred 300 days before, unless an exception applies. See Van
Zant, 80 F.3d at 712; Carter v. New York City Dep’t of Corr., 7 F. App’x 99, 103 (2d Cir. 2001)

11

The statute requires a charge of discrimination be filed within 180 of the alleged unlawful conduct, but in cases
where the state has its own equal employment agency at which claimant has already filed a charge, then the charge
must be filed within 300 days of the alleged unlawful conduct. Nat’l R.R. Passenger Corp., 536 U.S. at109; Van Zant,
80 F.3d at 712. There is no evidence in the record to demonstrate whether Plaintiff first filed her claims with the New
York State Department of Human Rights (“NYSDHR”), but Defendants concede that the 300-day period was
applicable. (See Defs. Br., at 8.) See also Patterson v. Cty. of Oneida, N.Y., 375 F.3d 206, 220 (2d Cir. 2004) (parties
agree that 300-day period applicable).

13

(summary order) (noting that the 300-day period “preclud[es] consideration of events that occurred
more than 300 day prior to filing an administrative complaint”).
Plaintiff was rejected for the Fellowship in May 2009 but filed her Initial Charge on July
19, 2010. (See Def. 56.1, Ex. AA.) Only claims related to alleged unlawful conduct that occurred
after October 3, 2009 are actionable; the Fall ‘09 Fellowship rejection is untimely and no exception
applies. See Patterson v. County of Oneida, N.Y., 375 F.3d 206, 220 (2d Cir. 2004); see also
Pearson, 499 F. Supp. 2d at 590 (noting that “multiple incidents of discrimination, even similar
ones, that are not the result of a discriminatory policy or mechanism do not amount to a continuing
violation”). 12 Defendants’ Motion in this regard is granted.
B.

Race-Based Claims

Plaintiff acknowledges that the Initial Charge does not specify race discrimination, but
argues that the Second Charge relates back to the first and/or the claims are reasonably related to
one another. (See Plf. Br. at 4-8.) 13 This Court agrees.

12

Plaintiff cannot avail herself of the continuing violation exception under these circumstances. “The continuing
violation exception applies when there is evidence of an ongoing discriminatory policy or practice. . . .” Van Zant, 80
F.3d at 713. Primarily, Plaintiff makes no effort to oppose Defendants’ contention, and does not argue in favor of the
continuing violation exception. Even if Plaintiff had, the exception would not apply because her termination on
December 17, 2009, the act she identified as the discriminatory act, is a discrete act, see Nat’l R.R. Passenger Corp.,
536 U.S. at 109, and there is no evidence that “an ongoing policy of discrimination” existed, Patterson, 375 F.3d at
220 (nevertheless distinguishing “discrete acts of discrimination” and finding that “the mere fact that an employee
was dismissed within the statutory period cannot be used ‘to pull in [a] time-barred discriminatory act’”).
13
To the extent that Plaintiff argues that her claims in the Second Charge are reasonably related to the Initial Charge,
this Court disagrees, as that doctrine is inapplicable. The reasonably related doctrine arises in circumstances where
the conduct before the court was not alleged in an EEOC charge. See Littlejohn v. City of New York, 795 F.3d 297,
322 (2d Cir. 2015) (“[C]laims not raised in an EEOC complaint may still be a part of the complaint later filed in
federal court ‘if they are reasonably related to the claim filed with the agency.’”); see also Ximines v. George Wingate
High Sch., 516 F.3d 156, 158 (2d Cir. 2008) (age discrimination claim not in EEOC charge); Williams v. N.Y. Hous.
Auth., 458 F.3d 67, 71 (2d Cir. 2006) (applying reasonably related doctrine to circumstance where sex discrimination
was not brought before EEOC at all); Alfano v. Costello, 294 F.3d 365, 381 (2d Cir. 2002) (noting that a court can
hear Title VII claims “only if they have been included in an EEOC charge or are based on conduct subsequent to the
EEOC charge which is reasonably related to that alleged in the EEOC charge”) (internal quotations omitted); Holtz v.
Rockefeller Co., Inc., 258 F.3d 62, 83 (2d Cir. 2001) (viewing claims “spelled out in two affidavits [Plaintiff] filed
with the EEOC” under lens of charge amendment, not reasonably related doctrine). That is not the case here.

14

The EEOC permits amendments of a charge:
to cure technical defects or omissions, including failure to verify the charge,
or to clarify and amplify allegations made therein. [Thus,] amendments
alleging additional acts which constitute unlawful employment practices
related to or growing out of the subject matter of the original charge will
relate back to the date the charge was first received.
See 29 C.F.R. § 1601.12(b).
While “amendments that raise a new legal theory [typically] do not ‘relate back’ to an
original charge of discrimination,” see Caravantes v. 53rd St. Partners, LLC, No. 09-CV7821(RPP), 2012 WL 96474, at *6 (S.D.N.Y. Jan. 12, 2012) (citing Manning v. Chevron Chem.
Co., 332 F.3d 874 (5th Cir. 2003)), where, as here, the amendment “do[es no] more than apply a
different legal gloss to the same facts, Bowen v. MTA N.Y.C. Transit Auth., No. 09-CV-3153, 2011
WL 7940367, at *8 (E.D.N.Y. Dec. 29, 2011), and there is little prejudice to defendants,
Caravantes, 2012 WL 96474, at *6, relation back is appropriate.
Critically, Courts must ensure that Title VII charges are liberally construed, as “Title VII
claimants should not be held to the precision of a code pleader,” Silver v. Mohasco Corp., 602 F.2d
1083, 1090 (2d Cir. 1979); see also Caravantes, 2012 WL 96474, at *5 (technical readings of Title
VII requirements are “particularly inappropriate in a statutory scheme in which laymen, unassisted
by trained lawyers, initiate the process”); Bowen, 2011 WL 7940367, at * 7 (quoting Sanchez v.
Standard Brands, Inc.¸431 F.2d 455, 562 (5th Cir. 1970) for proposition that while claimant “may
have precise knowledge of the facts concerning the ‘unfair thing’ done to him, [he may] not be
fully aware of the employer’s motivation for perpetrating the ‘unfair thing.’”).
The Court is mindful that Plaintiff’s Questionnaire reads predominantly of disability
discrimination, and references race discrimination only insofar as it identifies the races of the
individuals who were awarded the Fellowship, (see Sapir Decl., Ex. 37), and that Plaintiff is “Irish

15

Catholic”, (id.) Nevertheless, her Second Charge asserts no new facts, or additional instances of
discriminatory conduct; it merely provides an additional legal lens through which to consider the
reasons for her termination. (Compare Defs. 56.1, Ex. AA and Sapir Decl., Ex. 37 with Defs. 56.1,
Ex. BB.)

Additionally, Defendants would not be prejudiced by this finding.

The EEOC

investigated the claims of racial discrimination, (see Sapir Decl., Ex. 39), and gave Defendants
ample opportunity to defend the charges, (Id.) Indeed, the July 20th Determination states that “the
Commission asked for [WCC’s] evidence regarding poor student evaluations on two occasions but
no information was provided”, and that WCC “was also asked twice to provide the records of the
individuals, both African-American women, who received the Fellowship but declined to produce
them.” (See id.) Defendants were on notice of the full extent of the charges against them.
Moreover, the Second Charge was filed during the EEOC’s investigation and the EEOC
was able to render a determination on the merits regarding both disability and race discrimination.
One of the central purposes of a charge is to “place the EEOC on notice that someone . . . believes
that an employer has violated the title.” E.E.O.C. v. Shell Oil Co., 466 U.S. 54, 68 (1984).
Consequently, courts look to the actions of the EEOC for guidance on decisions regarding proper
amendments, particularly noting whether the agency “did in fact investigate plaintiff’s claims
against” a defendant. Manko v. Deutsche Bank, No. 02-CV-10180(TPG), 2004 WL 574659, at *5
(S.D.N.Y. Mar. 22, 2004) (referring to finding by NYSDHR); see Cole v. Cornell Co-op.
Extension, No. 03-CV-691S, 2006 WL 2711463, at * 4 (W.D.N.Y. Sept. 20, 2006) (in amendment
analysis, considering fact that EEOC had already issued right to sue letter by time second charge
was filed); Shapiro v. AOE/Richo, Inc., No. 96-CV-7274(LMM), 1997 WL 452026, at *2
(S.D.N.Y. Aug. 7, 1997) (noting that second charge was filed after right to sue letter was issued);
Babcock v. Frank, 729 F.Supp. 279, 284 (S.D.N.Y. 1990) (noting that the third charge was filed

16

during the pendency of the EEOC investigation).

This Court is similarly persuaded that

amendment is proper due to the EEOC’s determination which: (1) assigned Plaintiff’s Second
Charge the same charge number as the Initial Charge; (2) identified it as an Amended Charge; and
(3) considered both claims of disability and race discrimination in its analysis. (See Sapir Decl.,
Ex. 39; Defs. 56.1, Exs. AA, BB.)
In consideration of the foregoing, Plaintiff’s claims of race discrimination are deemed
administratively exhausted and are properly before this Court.
II.

McDonnell Douglas Standard
Plaintiff’s claims of disability and race discrimination, as well as retaliation, are subject to

the McDonnell Douglas burden-shifting standard. See Ya-Chen Chen v. City Univ. of New York,
805 F.3d 59, 70 (2d Cir. 2015); Kirkland v. Cablevision Sys., 760 F.3d 223, 225 (2d Cir. 2014);
McMillan v. City of New York, 711 F.3d 120, 125 (2d Cir. 2013). Regardless of the claim, plaintiff
bears the initial burden of demonstrating its prima facie case. Cortes v. MTA New York Transit,
802 F.3d 226, 231 (2d Cir. 2015); Kirkland, 760 F.3d at 225; Abrams v. Dep’t of Pub. Safety, 764
F.3d 244, 251 (2d Cir. 2014) (citing Bickerstaff v. Vassar Coll., 196 F.3d 435, 446 (2d Cir. 1999));
McMillan, 711 F.3d at 125. Assuming Plaintiff demonstrates a prima facie case, a “presumption
arises that the employer unlawfully discriminated,” Roge v. NYP Holdings, Inc., 257 F.3d 164, 168
(2d Cir. 2001), and the burden then “shifts to the employer to give a legitimate, non-discriminatory
reason for its actions.” McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). The “final
and ultimate burden” then returns to Plaintiff to demonstrate that “defendant’s reason is in fact
pretext for unlawful discrimination.” See Abrams, 764 F.3d at 251; Cortes, 802 F.3d at 231.

17

A.

Title VII

For racial discrimination, a plaintiff must “proffer evidence that (1) he belongs to a
protected group; (2) he was qualified for his position; (3) his employer took an adverse action
against him; and (4) the adverse action occurred in circumstances giving rise to an inference of
race discrimination.” Kirkland, 760 F.3d at 225; Abrams, 764 F.3d at 251-52. “[I]f the plaintiff
has failed to show that there is evidence that would permit a rational factfinder to infer that the
employer’s proffered rational is pretext, summary judgment dismissing the claim is appropriate.”
Patterson, 375 F.3d at 221.
1. Prima Facie Case of Race Discrimination
Defendants’ challenge Plaintiff’s ability to demonstrate an adverse employment action and
an inference of discrimination. (See Defs. Br. at 9-14.)
As to adverse employment action, Defendants contend that the non-receipt of the Fall 2009
Fellowship does not suffice. (Id. at 9-10.) In light of this Court’s finding that claims related to the
Fall ‘09 Fellowship are time-barred, see supra I.A., the denial of her application cannot be an
adverse employment action for purposes of her Title VII claims, see Van Zant, 80 F.3d at 712;
Sesay-Harrell v. NYC Dep’t of Homeless Sevs., No. 12-CV-925(KPF), 2013 WL 6244158, at *16
(S.D.N.Y. Dec. 2, 2013) (noting that untimely allegations cannot be considered adverse
employment action). 14 Accordingly, the Court may only consider the denial of the Fall ‘09
Fellowship as “background evidence to support the actionable claims.”

Jute v. Hamilton

Sundstrand Corp., 420 F.3d 166, 176 (2d Cir. 2005).
Plaintiff nevertheless has suffered an adverse employment action; WCC’s decision not to
rehire her. The parties do not dispute that such a decision amounts to Plaintiff’s termination, an

14

Due to this decision, the Court does not reach a determination on whether or not the denial of any fellowship can
amount to adverse employment action under Title VII.

18

action well established as a “materially adverse change,” Hrisinko v. New York City Dep’t of Educ.,
369 F. App’x 232, 235 (2d Cir. 2010) (summary order), sufficient for purposes of a prima facie
showing, Sesay-Harrell, 2013 WL 6244158, at *14. (quoting Breyer v. Cnty. of Nassau, 524 F.3d
160, 163 (2d Cir. 2008)).
In support of her argument that she has shown an inference of discrimination, Plaintiff
points to the “racially tense and divisive environment” in the English Department at the time she
was terminated and “an interest in providing Fellowships to racial and ethnic minorities.” (See
Plf. Br. at 12-13.) While Plaintiff’s burden to present a prima facie case under the McDonnell
Douglas framework is “minimal”; a “plaintiff’s case must fail if she cannot carry this preliminary
burden,” see Kolesnikow v. Hudson Valley Hosp. Ctr., 622 F. Supp. 2d 98, 106 (S.D.N.Y. 2009)
(quoting Beyer, 524 F.3d 160) (internal quotations omitted). Plaintiff’s allegations, though thin,
are sufficient.
The circumstances surrounding Plaintiff’s rejection for the Fall ‘09 Fellowship and her
subsequent submission of an application for the Spring 2010 Fellowship, the racially tense
environment that existed in the English department after the firing of Mr. Downie, (Defs. Cntr.
¶110), and the treatment of other individuals not in Plaintiff’s protected class, demonstrate an
inference of discrimination. See Russell v. New York Univ., No. 15-cv-2185(GHW), 2017 WL
3049534, at *32 (S.D.N.Y. July 17, 2017) (noting that courts look at, inter alia, “more favorable
treatment of employees not in the protected group; or the sequence of events leading to the
plaintiff’s discharge” to ascertain whether there is an inference of discrimination). Shortly after
Downie sued regarding his termination, a “special line” was created to advance the promotion of
an African American adjunct who was promoted outside of usual channels when Plaintiff was not.
(Id. ¶102.) Moreover, Plaintiff’s version of events would demonstrate that she was originally

19

chosen to receive the Fall ‘09 Fellowship, but it was rescinded because she is not a person of color.
(Sapir Decl., Ex. 1 at 254-55.) Finally, when Plaintiff applied for the fellowship a second time,
after complaining of discrimination during a time where the English Department was already
battling claims of racism, (Defs. Cntr. ¶116), she was terminated, and thus ineligible to receive the
Fellowship at all.
2. Legitimate Non-Discriminatory Reason for Termination
Defendants have met their burden to articulate a non-discriminatory reason for Plaintiff’s
termination. At this stage of the McDonnell Douglas standard, the Court need not assess the
credibility of the evidence proffered; it must decide whether defendants have “introduced evidence
that, ‘taken as true, would permit the conclusion that there was a nondiscriminatory reason” for
Plaintiff’s dismissal. Holcomb v. Iona Coll., 521 F.3d 130, 141 (2d Cir. 2008) (quoting St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502 (1993)). This standard is satisfied. Vent testified that Plaintiff
was terminated because they had received student complaints that had been recurring for “three or
four semesters” causing Vent to “reach[] a point where [she] said, this is it, we cannot continue
this,” and she “decided it was just too much of a liability, and [she] made the final decision not to
rehire [Plaintiff].” (See Defs. 56.1, Ex. G, at 101, 133; Sapir Decl., Ex. 2, at 134.) Madden’s
December 21, 2009 email confirms that Plaintiff’s termination related to Plaintiff’s “history of
problems” and her tendency to be “hostile with her students and her colleagues.” (See Defs. 56.1,
Ex. X.) Moreover, during his testimony, Madden discussed at least two instances in which students
complained directly to him about Plaintiff’s alleged hostility. (See Sapir Decl., Ex. 3, 25-30.)
In light of Defendants’ legitimate non-discriminatory reason for Plaintiff’s termination,
“the presumption of discrimination drops out” and Plaintiff must now “present evidence from
which a fact-finder could reasonably conclude that the employer’s reason was pretextual and that

20

the real reason was discrimination.” Roge, 257 F.3d at 168 (citing Tarshis v. Riese Org., 211 F.3d
30 (2d Cir. 2000)) (internal quotations and alternations omitted).
3. Pretext
While Plaintiff’s arguments call into question the veracity of Defendants’ reason for her
termination, they fall short of demonstrating that the real reason was race-related.
While “direct evidence of [discriminatory] intent” is rarely available, thus “affidavits and
depositions must be carefully scrutinized for circumstantial proof which, if believed, would show
discrimination,” Holcomb, 521 F.3d at 137 (quoting Gallo v. Prudential Residential Servs., Ltd.
P’ship, 22 F.3d 1219, 1124 (2d Cir. 1994)) (internal quotations omitted), even in the discrimination
context, a nonmoving party must submit “hard evidence”, see Shelton v. Trustees of Columbia
Univ., 369 F. App’x 200, 201 (2d Cir. 2010) (summary order) (quoting Jeffreys v. City of New
York, 426 F.3d 549, 554 (2d Cir. 2005)), and is required to provide “more than conclusory
allegations of discrimination.” Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997);
accord Pathare v. Klein, 347 F. App’x 646, 647 (2d Cir. 2009) (summary order). Thus, to defeat
summary judgment on the issue of pretext, Plaintiff must demonstrate “both that the reason was
false, and that discrimination was the real reason.” Darboe v. Staples, Inc., 243 F. Supp. 2d 5, 15
(S.D.N.Y. 2003) (citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993)) (emphasis
added).
Where, as here a plaintiff offers no evidence that the discriminatory motive “was a factor”
in

decision

on

the

adverse

employment

action,

or

only

makes

a

“conclusory

allegation[s] . . . unsupported by any actual evidence of discriminatory motive,” he cannot defeat
summary judgment. Shub v. Westchester Cmty. Coll., 556 F. Supp. 2d 227, 256 (S.D.N.Y. 2008);
see also Diaz v. City Univ. of New York, No. 13-CV-2038(PAC)(GWG), 2017 WL 3088394, at

21

*14 (S.D.N.Y. July 20, 2017) (no genuine issues where plaintiff offers “no non-speculative basis
on which to reach” a conclusion that the reason advanced by defendants is only pretext).
Plaintiff’s arguments consist predominantly of facts surrounding the rejection of her
application for the Fall ‘09 Fellowship and how such actions could have been racially motivated.
With regard to her termination, however, Plaintiff merely strings together a number of conclusory
statements and asks this Court to jump leaps in logic, unsupported by the record, because she was
terminated during a time when the English Department was facing backlash for denying tenure to
Mr. Downie. Plaintiff’s sole argument tying her termination to race is that “the only thing that
happened . . . is Plaintiff’s application for the [Spring ‘10] Fellowship came up for review and the
college wanted to ensure that Plaintiff, a white teacher, did not get appointed in favor of a black
applicant,” and that the “only way to ensure this was to deny her a teaching assignment for the
next semester and disqualify her from consideration.” (See Plf. Br. at 16.) Such contentions are
not supported by fact. This is simply too attenuated an argument to withstand muster; at best such
an argument would only demonstrate that Plaintiff was terminated to avoid considering her for the
Fellowship or because she was making waves regarding the Fall 09’ Fellowship decision, not
because of her race. 15 Defendants are entitled to summary judgment on this claim.
B.

ADA

Defendants argue that Plaintiff’s ADA claim fails because she cannot establish a prima
face case for disability discrimination. (See Defs. Br. at 16-18.) This Court agrees.
A prima facie case of disability discrimination requires a plaintiff to demonstrate, by a
preponderance of the evidence, that: (1) his employer is subject to the ADA; (2) he was disabled

15

Plaintiff correctly points out that “[i]t is hard to reconcile that, as of April 2009, Plaintiff was an effective teacher
of Basic Writing, who did the best for her students and had an excellent work ethic with an alleged ‘history of
problems’ resulting in the termination of her employment.” (See Plf. Br. at 15.) Nevertheless, there is no connection
between this inconsistency in Dr. Vent’s position and a showing that her termination was motivated by race.

22

within the meaning of the ADA; (3) he was otherwise qualified to perform the essential functions
of his job, with or without reasonable accommodation; and (4) he suffered adverse employment
action because of his disability.” Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 169 (2d Cir. 2006).
Conclusory assertions are insufficient on a motion for summary judgment. See Farina v. Branford
Bd. of Educ., 458 F. App’x 13, 16 (2d Cir. 2011) (summary order); see also Nieblas-Love v. New
York Hous. Auth., 165 F. Supp. 3d 51, 66 (S.D.N.Y. 2016) (noting that “it is well established that
a plaintiff must do more than ‘cite to their mistreatment and ask the court to conclude that it must
have been related to” discrimination).

Here, the parties only dispute whether Plaintiff’s

termination was due to her disability.
Plaintiff’s claim for ADA discrimination is based entirely on conclusory allegations and
indirect requests that this Court conclude that her termination was related to her disability. Indeed,
Plaintiff fails to even argue her disability claim separately; it is merely lumped into her arguments
regarding her race discrimination claims. (See Plf. Br at 9-21.) To be sure, the following
constitutes the only statements Plaintiff makes in support of her ADA claims: (1) in a heading, she
states that “the persons selected from the English Department were all black or ethnic minorities
who were not disabled”, (see Plf. Br. at 12 ); (2) she states that “even a cursory review of the
circumstances surrounding the decision to terminate her employment raises questions of fact
whether her race, disability or complaints actually motivated the decision rather than supposed
concerns about her performance,” (id. at 14), but provides not citations in support thereof; and (3)
she states that the “systematic deviation from [] rules for the benefit of minorities certainly raises
questions of fact” regarding racial and disability motivations (id. at 18). Plaintiff’s conclusory
assertions fail to do more than “cite to their mistreatment and ask [this Court] to conclude that it
must have been related to” her disability. Nieblas-Love, 165 F. Supp. 3d at 66.

23

There is only one incident reflected in the record related Plaintiff’s disability. In November
of 2009, a mere month before Plaintiff was terminated, two students made disparaging remarks
about her disability. (See Defs. 56.1, Ex. I.) Plaintiff drafted an incident report and indicated that
the students were permitted to return to class after submitting letters of apology. (Id.) On
December 12, 2009, Kevin Slavin, one of the deans at WCC, responded to Plaintiff’s email and
inquired into whether the students had apologized, noting that if they had not he “will see them
again.” (Id.) This evidence tends to dispute any contention that disability was a factor in her
termination, and considered in conjunction with Plaintiff’s abject failure to produce one iota of
evidence to support a claim that she was discriminated against because of her disability, this Court
finds that her ADA claim cannot survive summary judgment. Defendants’ Motion on the ADA
claim is granted.
C.

Retaliation 16

Defendants challenge Plaintiff’s retaliation claim because she never “‘made a charge,
testified, assisted, or participated in any manner in an investigation, proceeding, or hearing’ prior
to [WCC’s] determination” to fire her. (See Defs. Br. at 21 (quoting 42 U.S.C. § 2000e-3(a)).)
Defendants otherwise argue that Plaintiff has failed to demonstrate a causal connection between
any alleged protected activity and her termination. (Id.) This Court disagrees.
As with the substantive Title VII and ADA claims for discrimination, retaliation claims are
subject to the McDonnell Douglas standard. Ya-Chen Chen, 805 F.3d at 70. A prima facie case
for retaliation requires a showing that Plaintiff “participated in a protected activity, suffered an

16

This Court’s dismissal of Plaintiff’s discrimination claims under Title VII and the ADA does not preclude Plaintiff
from prevailing on a retaliation claim. See Grozynski v. JetBlue Airways Corp., 596 F.3d 93, 110 n.8 (2d Cir. 2010)
(noting that employee “need not establish that the conduct she opposed was in fact a violation of Title VII”); Senno v.
Elmsford Union Free Sch. Dist., 812 F. Supp. 454, 473 (S.D.N.Y. 2011) (noting that a “plaintiff need only ‘have a
good faith, reasonable belief that he was opposing an employment practice made unlawful . . . .’ [h]e need not prove
the underlying discrimination allegations”) (quoting Kessler v. Westchester Cnty. Dep’t of Soc. Servs., 461 F.3d 199
(2d Cir. 2006)).

24

adverse employment action, and that there was a causal connection between her engaging in the
protected activity and the adverse employment action.” Id. (quoting Gorzynski v. JetBlue Airways
Corp., 596 F.3d 93, 110 (2d Cir. 2010)) (internal quotations omitted). Under the McDonnell
Douglas standard, if Plaintiff makes a prima facie showing and defendant then provides a
legitimate non-retaliatory reason for the adverse employment action, a plaintiff then “must prove
‘that the desire to retaliate was the but-for cause of the challenged employment action.” Id.
(quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013)).
1. Prima Facie Case
Defendants first argue that verbal complaints are insufficient for protected activity (Defs.
Br. at 20); they miss the mark. While it is true that protected activity is shown if plaintiff “has
made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or
hearing under this subchapter,” in response to an alleged unlawful employment practice, see 42
U.S.C. § 2000e-3(a); see also 42 U.S.C. § 12203(a), it is not the only form of protected activity.
Indeed, a plaintiff has engaged in protected activity where he “has opposed any practice made an
unlawful employment practice by this subchapter.” Id. The statute does not, however, define what
type of conduct constitutes opposition. See Smith v. St. Luke’s Roosevelt Hosp., No. 08-CV4710(GBD)(AJP), 2009 WL 2447754, at *20 (S.D.N.Y. Aug. 11, 2009) (quoting Crawford v.
Metro Gov’t of Nashville & Davidson Cnty., 555 U.S. 271, 276 (2009)), report and
recommendation adopted by 2009 WL 2878093.
The Supreme Court made clear that “[t]he term ‘oppose,’ being left undefined, carries its
ordinary meaning . . . : ‘[t]o resist or antagonize . . . ; to contend against; to confront; resist;
withstand . . . .” Crawford, 555 U.S. at 276. Indeed, “‘[w]hen an employee communicates to her
employer a belief that the employer has engaged in . . . a form of employment discrimination, that

25

communication’ virtually always ‘constitutes the employee’s opposition to the activity.’” Id.
Consequently, even informal complaints to management constitute opposition for purposes of
demonstrating protected activity. Amin v. Akzo Nobel Chems., Inc., 282 F. App’x 958, 961 (2d
Cir. 2008) (summary order); Giscombe v. N.Y.C. Dep’t of Educ., 39 F. Supp. 3d 396, 401
(S.D.N.Y. 2014); Smith, 2009 WL 2447754, at *20. Consequently, Plaintiff’s alleged complaints
to Vent are sufficient for purposes of this prong. 17
Defendants’ argument that any such complaints are insufficient because Vent does not
recall them, (see Defs. Br. at 21), is likewise unavailing. The existence of such testimony does
little to dissuade this Court that Plaintiff has raised a triable issues of fact for two reasons: (1)
Vent’s testimony is not a direct contradiction of Plaintiff’s; 18 and (2) any dispute amounts to a
credibility determination, which this Court cannot make. Moreover, while Vent equivocates on
whether she can recall these events, she also contradicts herself by testifying that Plaintiff was
“harping on who got a job, who didn’t; harping on conspiracies about who’s trying to keep her
from getting this fellowship.” (See Sapir Decl., Ex. 2 at 212.) A reasonable juror could find that
such testimony implies that Plaintiff was repeatedly complaining to Vent, such that it began to
irritate her. These contradictions must be resolved through a credibility determination, which is

17

To the extent Plaintiff claims her complaints to Vent during the December 17, 2009 telephone conversation
constitute protected activity, she is incorrect. By Plaintiff’s own admission, the termination was communicated to her
on December 17, 2009, by Vent, causing her to claim it was because of discrimination; indeed, in writing Plaintiff
indicated that she had been fired during that phone call. (See Defs. 56.1, Ex. U.) Consequently, Plaintiff’s complaints
to Vent regarding discrimination during that call cannot suffice for retaliation, as they did not occur before her
termination. See Hausdorf v. N.Y.C. Dep’t of Educ., (quoting Nakis v. Potter, 422 F. Supp. 2d 398, 423 (S.D.N.Y.
2006) for proposition that no causal connection where adverse action “predated, rather than followed” the protected
activity).
18
In fact, Defendants’ cherry-pick Vent’s testimony in an effort to demonstrate no genuine issue of material fact exists.
In reality, Vent, responding to whether or not Plaintiff complained to her that she was rejected due to discrimination,
also testified that it “sound[ed] like something [Plaintiff] might have said, but I don’t recall that.” (See Sapir Decl.,
Ex. 2 at 312.)

26

within the sole province of the jury. See Fincher v. Depository Trust and Clearing Corp., 604
F.3d 712, 725 (2d Cir. 2010).
Plaintiff has also demonstrated a causal connection between the protected activity and her
termination. “Title VII is violated if a retaliatory motive played a part in the adverse employment
action even if it was not the sole cause.” Summer v. U.S. Postal Serv., 899 F.2d 203, 209 (2d Cir.
1990) (citing Davis v. State Univ. of New York, 802 F.2d 638, 642 (2d Cir. 1986)). Even if the
employer had “objectively valid grounds for the discharge,” Title VII is nonetheless violated if
“the employer was motivated by retaliatory animus.” Id. (citing DeCintio v. Westchester Cnty.
Med. Ctr., 821 F.2d 111, 115 (2d Cir. 1987)). Plaintiffs may prove causal connection “either
through direct evidence of a retaliatory animus or indirectly through evidence, for example, of the
close proximity in time of the two events.” Dayes v. Pace Univ., 2 F. App’x 204, 208 (2d Cir.
2001) (summary order) (citing Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000)).
Plaintiff is arguably unable to root her argument for causal connection in temporal
proximity. Assuming that Plaintiff complained only once to Vent in May or June of 2009 that her
non-receipt of the Fall ‘09 Fellowship was due to discrimination, six months passed between that
complaint and her termination; too long a gap to be considered “very closely associated to support
an inference of retaliation,” see Giles v. NBC Universal, Inc., No. 10-CV-7461(DAB), 2011 WL
4376469, at *3 (S.D.N.Y. Sept. 20, 2011) (alternations in original omitted), although at least one
court has found six months to be within the realm of timeframes considered close enough, see
Barry v. N.Y.C. Police Dep’t, No. 01-CV-10627(CBM), 2004 WL 758299, at *8 (S.D.N.Y. Apr.
7, 2004) (finding 8 months close enough); but see Jimenez v. City of New York, 605 F. Supp. 2d

27

485, 528 (S.D.N.Y. 2009) (noting that anything more than three months is typically insufficient).
Temporal proximity, however, is not viewed in a vacuum.
Clinching Plaintiff’s ability to demonstrate a causal connection is her direct evidence of
retaliatory animus. On October 29, 2009, the same day that Plaintiff submitted her application for
consideration for the Spring 2010 fellowship, Ostman and Vent exchanged emails about Plaintiff.
Ostman asked Madden and Vent if they could “discuss this together before [they] respond[ed]”
and noted that Plaintiff’s application was “quite long.” (See Sapir Decl., Ex. 30.) In response,
Vent wrote “I don’t want to sabotage her application, but I’m getting a little tired of this after
hearing her story over and over.” (Id.) Considering the fact that this email was in direct response
to receiving Plaintiff’s application for Spring 2010 and Plaintiff’s complaints to Vent that she was
denied the Fall ‘09 Fellowship due to discrimination, a reasonable juror could infer that the story
that Vent was tired of hearing “over and over” was Plaintiff’s complaints that she was
discriminated against.
In light of both the direct and indirect evidence of retaliatory animus presented by Plaintiff,
she has presented sufficient evidence to defeat summary judgment on her retaliation claim. See
Barry, 2004 WL 758299, at *9 (denying motion where Plaintiff provided both direct and indirect
evidence of retaliatory animus).
This Court has already determined, supra II.A.2., that Defendants have proffered a
legitimate non-discriminatory reason for terminating Plaintiff which can be considered a legitimate
non-retaliatory reason for terminating Plaintiff as well.
2. Pretext for Retaliation
At the pretext stage, a plaintiff “may rely on evidence comprising her prima facie case,
including temporal proximity, together with other evidence such as inconsistent employer

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explanations, to defeat summary judgment.” Giscombe v. N.Y.C. Dep’t of Educ., 39 F. Supp. 3d
396, 403 (S.D.N.Y. 2014) (quoting Zann Kwan v. Andalez Grp. LLC, 737 F.3d 834 (2d Cir. 2013)).
The pretext stage “does not require proof that retaliation was the only cause of the employer’s
action, but only that the adverse action would not have occurred in the absence of the retaliatory
motive.” Zann Kwan, 737 F.3d at 846. A Plaintiff can meet this burden by “demonstrating
weaknesses, implausibilities, inconsistencies, or contradictions in employer’s proffered legitimate,
non-retaliatory reasons for its action.” Id.
First, Plaintiff raises triable issues of fact that the proffered reason is false. The purported
reasoning for Plaintiff’s termination is that she had received too many student and colleague
complaints and it was easier to “cut ties now” than allow Plaintiff to get on a tenure track. (See
Defs. 56.1, Ex. G at 133; Ex. X.) The following facts, among others, call that reasoning into
question: (1) while Vent testified that Madden received complaints about Plaintiff “every single
semester”, Madden testified that he had specific recollection of only two complaints, and the others
were just general from his colleagues that students were complaining, (compare Defs. 56.1, Ex. G
at 133 with Sapir Decl., Ex. 3 at 36); (2) Vent testified that she personally had never received
complaints from students about Plaintiff but Madden testified that Vent did indeed receive student
complaints which she mentioned to him, (Sapir. Decl., Ex. 2 at 134 with Ex. 3 at 37); (3) the two
complaints Madden did describe, he believed were resolved, as he had not heard back from the
students after he advised them to discuss their complaints with Plaintiff directly, (Ex. 3 at 30, 33);
(4) Madden had no recollection of ever contacting Plaintiff by email, or otherwise, regarding any
complaints, (id. at 19), and (5) though Plaintiff’s “abrasive” personality was cited as a reason for
her termination, Ostman admitted that she also found Plaintiff to be kind and noted that she

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assumed her abrasive qualities to be linked to Plaintiff’s Bronx roots, (Sapir Decl., Ex. 4 at 30.)
This evidence of inconsistencies and contradictions is sufficient to demonstrate issues of fact.
Plaintiff has also raised triable issues of fact regarding pretext for retaliation. On the one
hand, Vent testified that her opinion of Plaintiff began to sour after hearing so many complaints
semester after semester, (see Defs. 56.1, Ex. G at 133), that she only allowed Plaintiff to use a
letter previously written by her in 2006 for Plaintiff’s Fall ‘09 application because she did not
really support her at that point, (see Sapir Decl., Ex. 2 at 193), and by that time she believed
Plaintiff was not an effective teacher of Basic Writing and did not do what was best for her
students. (See Plf. Resp. ¶¶79-80.) Vent’s April 2009 email (offered as evidence of a triable issue
of fact) directly contradicts Vent’s testimony, as it was written during the time Vent testified she
had no longer supported Plaintiff. In an apparent endorsement of Plaintiff, Vent wrote:
Maureen Hurson 19 is an effective teacher of Basic Writing. She provides
students with structure, basic skills, and a great deal of practice writing. This
means a great deal of work for her, but she does what is best for students. As
a disable person, she is a good role model for her cases. This fact, along with
her work ethic, makes her a strong candidate for the fellowship.
(Sapir Decl., Ex. 23 (emphasis added).) The following semester, after Plaintiff submitted her
Spring 2010 application, Vent objected to Plaintiff’s candidacy for the Fellowship by indicating
she was tired of hearing Plaintiff’s “story.” (Sapir Decl., Ex. 30.) Shortly thereafter, Plaintiff was
terminated.
The direct contradictions and inconsistencies in Vent’s account of when she did and did
not support Plaintiff demonstrate an issue of credibility this Court is not permitted to resolve on a
motion for summary judgment. As the individual who claimed to have made the final decision on
Plaintiff’s employment, (see Plf. Resp. ¶81), inconsistencies in her opinion of Plaintiff leading up

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Plaintiff goes by both Mary and Maureen.

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